Louisiana Law Review
Volume 71 | Number 3
Spring 2011
The BP Spill and the Meaning of "Gross Negligence
or Willful Misconduct"
Patrick H. Martin
Louisiana State University Law Center
Repository Citation
Patrick H. Martin, The BP Spill and the Meaning of "Gross Negligence or Willful Misconduct", 71 La. L. Rev. (2011)
Available at: http://digitalcommons.law.lsu.edu/lalrev/vol71/iss3/5
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The BP Spill and the Meaning of "Gross Negligence or
Wilful Misconduct"
PatrickH. Martin*
INTRODUCTION
The blowout of the Macondo well on April 20, 2010 and the
resulting escape of oil into the waters of the Gulf of Mexico and
onto the shores of coastal states set in motion numerous lawsuits
that will take years to resolve. A significant amount of the liability
and penalties arising from the Gulf oil spill will turn on the
treatment given to the terms "gross negligence" and "willful
misconduct." Should the United States decide to bring a criminal
complaint for manslaughter for the lives lost in the accident, "gross
negligence" may also be an element in defining the crime. The
terms involve interpretation as statutory, contractual, and common
law standards. The undertaking is more complex than it might first
appear; it will involve courts, arbitrators, and federal agencies.
Because of the complexity, some framework for interpretation of
the terms may be useful. The aspiration of this Article is to provide
a framework for the interpretative process without analysis or
application of facts within the framework.' No attempt will be
made to assess whether the facts establish "gross negligence" or
"willful misconduct" by any party, defendant or plaintiff. As will
be seen, under the Oil Pollution Act (OPA) 2 as well as other
statutes and common law doctrines, the determination that an
injured party's own "gross negligence" or "willful misconduct"
contributed to the injury may be used to defeat liability to that
party.
Copyright 2011, by PATRICK H. MARTIN.
J.D., Duke University School of Law (1974); Ph.D., Louisiana State
University (1974); Campanile Professor of Mineral Law, Paul M. Hebert Law
Center, Louisiana State University; Director, Louisiana Mineral Law Institute.
1. In full disclosure, the author has been employed for some aspects of
work concerning contract issues in the matter of the BP oil spill. This
engagement was done after the bulk of the work was completed on this Article.
This Article arose from the author's years of teaching in interpretive technique
in legal philosophy, in contract law, and in administrative law. Parts of this
Article are derived from the author's work-in-progress on cognitive aspects in
interpretation of language, particularly legal usages. This Article does not
attempt to cover interpretation of "gross negligence" and "willful misconduct"
in contracts.
2. Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2762 (2006).
*
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With respect to the OPA and the Clean Water Act, 3 the terms
"gross negligence" and "willful misconduct" are very old terms in
a new context. Their usage and adoption by Congress carry with
them their uses from the past. As said by John L. Austin, the
Oxford philosopher of language, words come to us "trailing clouds
of etymology."A In one sense, this Article is a "grammatical
investigation," a phrase used by one well-known linguist, and it is
in keeping with the recognition by many linguists that "words do
not have meanings, they invite them."5 This "investigation"
involves both cognitive linguistics or neurolinguistics (how
language operates) and historical inquiry. Most meanings of terms
are characterized by family resemblances rather than a precise
categorical identity. The meaning of a word or term is its use. Use
necessarily involves purpose and context.
Congress has chosen to link substantial levels of liability to
inquiries and determinations of "gross negligence." It may be
thought of as a striking choice in light of recent treatment of "gross
negligence" by courts and scholars. Reflective of skepticism about
"gross negligence" are the observations of Prosserand Keeton, a
standard text on tort law:
Although the idea of "degrees of negligence" has not been
without its advocates, it has been condemned by most
writers, and, except in bailment cases, rejected at common
law by most courts, as a distinction "vague and
impracticable in [its] nature, so unfounded in principle,"
that it adds only difficulty and confusion to the already
nebulous and uncertain standards which must be given to
the jury. The prevailing rule in most situations is that there
are no "degrees" of care or negligence, as a matter of law;
there are only different amounts of care, as a matter of fact.
. . . [T]he difficulty of classification, because of the very
real difficulty of drawing satisfactory lines of demarcation,
together with the unhappy history justifies the rejection of
the distinctions in most situations.
The skepticism of Prosser and Keeton about the ability of
judges, juries, and commentators to intelligibly apply different
3. Clean Water Act, 33 U.S.C. §§ 1251-1387 (2006 & Supp. 2009).
4. J.L. Austin, A Pleafor Excuses, in PHILOSOPHICAL PAPERS 175, 201 (3d
ed. 1979).
5. Michael G. Johnson, Language and Cognition in Products Liability, in
LANGUAGE IN THE JUDICIAL PROCESS 291, 296 (Judith N. Levi & Anne Graffam
Walker eds., 1990).
6. W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 34, at 21011 (5th ed. 1984) (footnotes omitted).
GROSS NEGLIGENCE AND THE OPA
2011]
959
degrees of negligence was preceded a century and a half ago by the
United States Supreme Court. In the 1853 admiralty personal
injury case (arising from an exploding boiler on a vessel) The
Steamboat New World v. King, the Court complained about the
distinctions claimed for classifying negligence into categories:
The theory that there are three degrees of negligence,
described by the terms slight, ordinary, and gross, has been
introduced into the common law from some of the
commentators on the Roman law. It may be doubted if
these terms can be usefully applied in practice. Their
meaning is not fixed, or capable of being so. One degree,
thus described, not only may be confounded with another,
but it is quite impracticable exactly to distinguish them.
Their signification necessarily varies according to
circumstances, to whose influence the courts have been
forced to yield, until there are so many real exceptions that
the rules themselves can scarcely be said to have a general
operation.7
The Court commented that if the law furnished no practically
applicable definition of the terms "gross negligence" or "ordinary
negligence," but left it to the jury to determine in each case what
the duty was, and what omissions amount to a breach of it, "it
would seem that imperfect and confessedly unsuccessful attempts
to define that duty, had better be abandoned." Whatever test might
be used, the Court said there was gross negligence in the failure to
use proper skill in the management of the boilers on the vessel.8
Despite the long history of judicial and scholarly dissatisfaction
with distinguishing between types of negligence, Congress has
chosen to make such a distinction and has required decisionmakers
to attempt to draw "satisfactory lines of demarcation." 9 The
congressional choice of terms and the terms themselves are
instances of the qualities of "linguistic density" and "resonance."
With the former, a multiplicity of ideas are expressed in a single
word or phrase, and with the latter, a verbal theme or image is
echoed from one text to another, so that meaning is enriched when
the texts (such as judicial opinions and statutes) are understood
together. 10
As will be developed, gross negligence and willful misconduct
are concepts that derive from tort law (including its intersection
7.
The Steamboat New World v. King, 57 U.S. (16 How.) 469, 474 (1853).
8. Id. at 476.
9.
10.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938).
CHARLES KAHN, THE ART AND THOUGHT OF HERACLITus 89 (1979).
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with contract law) and criminal law. Although the two terms can
be treated distinctively (and have been by some courts and
writers), in general legal usage they merge at their margins.
Necessarily and historically a finding of gross negligence or willful
misconduct has been a fault-based moral judgment. And the use of
the terms in several areas of tort law has blurred them into the
concept of "causation."
I. THE OPA OF 1990, INCLUDING THE FWPCA
The Oil Pollution Act of 1990 was the congressional response
to oil spills in the 1980s and was immediately prompted by the
Exxon Valdez spill in Alaskan waters in 1989. The reach of the
OPA extends both onshore and offshore, i.e., anywhere oil may be
discharged into or upon navigable waters or adjoining shorelines.
As it amended and supplemented several federal statutes, the OPA
also modified, supplemented, or displaced state and maritime tort
law. It is in significant part a federal tort statute and incorporates a
mixture of tort concepts from the Anglo-American legal system.
A. PertinentProvisions
The OPA establishes multiple categories of liability for
"responsible parties." The extent of liability (and penalties) for a
responsible party is based only in part on the culpability (moral
fault) of the party. That is to say, the OPA imposes strict liability
(liability without fault) on a responsible party for certain injuries
caused by the acts leading to an incident of oil pollution. The OPA
also provides statutory immunity from further liability for a
responsible party once a specific level of liability has been reached
for certain injuries identified by the statute.
"Responsible parties" include any person owning, operating, or
demise chartering a vessel; the owner or operator of an onshore
facility; the lessee or permittee of the area on which is located an
offshore facility; the owner or operator of a pipeline; and the
licensee of a deep water port. Such parties are liable (1) for
removal costs and (2) for damages for injury to natural resources,
injury to real or personal property (including economic losses
resulting from that injury), loss of subsistence use of natural
resources, loss of revenues (including taxes), loss of profits and
impairment of earning capacity resulting from such property loss
or natural resource injury, and the costs of providing additional
public services during or after removal response." As to this
11.
33 U.S.C. § 2702(b) (2006).
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GROSS NEGLIGENCE AND THE OPA
961
second category, a responsible party is limited in liability to the
statutory maximum (in the case of a lessee of the area on which is
located an offshore facility, $75,000,000). But the limitation does
not apply if the incident was proximately caused by the responsible
party's "gross negligence or willful misconduct" or the violation of
an applicable federal safety, construction, or operating regulation.12
The congressional grant of limited liability reflects a fault-based
theory of tort liability and a policy decision to encourage continued
oil production and transportation activities; it also discourages
(punishes) certain conduct in carrying out those activities. The
application of limited immunity to a responsible party does not
mean that damages under "(2)" above are not recoverable by an
injured party; rather, they will be recovered from an Oil Spill
Liability Trust Fund ("the Fund"), administered by the U.S. Coast
Guard, that is generated from a levy on oil industry revenues.1 3
The OPA amended the Federal Water Pollution Control Act
(FWPCA) to provide parallel or symmetrical treatment to penalties
for oil spills. That is to say, the OPA is essentially a tort statute,
and it also amends the civil penalty provisions of a statute that
covers other aspects of the same event as the tort aspect. Thus the
two statutes complement one another and use a common
terminology. The OPA amended the FWPCA to provide two levels
of civil penalties for a prohibited discharge-a standard level (now
about $1,100 per barrel) and an enhanced level (now about $4,300
per barrel).1 4 A finding that "a violation of paragraph (3) was the
result of gross negligence or willful misconduct of a person
described in subparagraph (A)" will trigger the enhanced civil
penalty.' 5 Because the two statutes were enacted and amended
together, respectively, and in application relate to the same
event(s), identical terms should presumptively be interpreted
identically.16 When, for example, Congress has employed and
12. Id. § 2704(c)(1)(A).
13. 26 U.S.C. § 9509; 33 U.S.C. § 2712(a). This feature of the OPA appears
to follow an economic theory of strict liability on the ground that "'tort' costs
should be borne by the activity which causes them." Guido Calabresi, Some
Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 533
(1961). Calabresi refers to the "basic economic structure which requires prices
of goods to reflect all the costs which producing or using them entail." Id. Thus
the oil industry itself is to bear a portion of the costs of oil spills under the OPA
in specified circumstances.
14. 33 U.S.C. § 1321(b)(7)(A)-(D).
15. Id. § 1321(b)(7)(D).
16. Smith v. City of Jackson, 544 U.S. 228, 233 (2005) ("[W]hen Congress
uses the same language in two statutes having similar purposes, particularly
when one is enacted shortly after the other, it is appropriate to presume that
Congress intended that text to have the same meaning in both statutes."); Nat'l
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LOUISIANA LA W RE VIEW
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defined the term "navigable waters" in the FWPCA and OPA, the
term should be interpreted as having the same meaning in both
acts.' 7 Where Congress and the federal courts have used the same
terms in other statutes and in the application of federal law in
cases, the same presumption should be followed unless context and
precedent mandate a contrary approach. This presumption is in
keeping with Ronald Dworkin's notion of "law as integrity": "The
adjudicative principle of integrity instructs judges to identify legal
rights and duties, so far as possible, on the assumption that they
were all created by a single author-the community personifiedexpressing a coherent conception of justice and fairness." 8
B. LegislativeHistory
The terms "gross negligence" and "willful misconduct" came
into the OPA via its predecessor and related statutes, which dealt
with water obstruction and pollution.' 9 Their wording, application,
and interpretation will bear upon the meaning of the OPA.
Treasury Emps. Union v. Chertoff, 452 F.3d 839, 857 (D.C. Cir. 2006) ("There
is a presumption that Congress uses the same term consistently in different
statutes.").
17. Rice v. Harken Exploration Co., 250 F.3d 264, 267 (5th Cir. 2001).
18. RONALD DWORKIN, LAW'S EMPIRE 225 (1986).
19. Secondary works on the law of oil spills that preceded the OPA include
David Ashley Bagwell, Hazardous and Noxious Substances, 62 TUL. L. REV.
433 (1988); Glenn Fjermedal, FederalOil Spill Legislation: A Future Standard,
53 ALB. L. REv. 161, 182-86 (1988); Sidney A. Wallace & Temple L. Ratcliffe,
Water Pollution Laws: Can They Be Cleaned Up?, 57 TUL. L. REv. 1343
(1983). Secondary works on the OPA include, inter alia, Sye J. Broussard, The
Oil PollutionAct of 1990: An Oil Slick over Robins Dry Dock, 8 LoY. MAR. L.J.
153 (2010); Francis J. Gonynor, Six Years Before the Mast: The Evolution of the
Oil PollutionAct of 1990, 9 U.S.F. MAR. L.J. 105 (1996); Charles S. Haight, Jr.,
Babel Afloat: Some Reflections on Uniformity in MaritimeLaw, 28 J. MAR. L. &
COM. 189 (1997); Lawrence I. Kiern, Liability, Compensation, and Financial
Responsibility Under the Oil Pollution Act of 1990: A Review of the First
Decade, 24 TUL. MAR. L.J. 481 (2000); Ronald Edward Kilroy, Making an Oily
Mess Less Messy: Use of Rule F Concursus to Reduce Oil Spill Litigation
Complexity, 2 ENVTL. LAW. 665 (1996); Keith B. Letourneau & Wesley T.
Welmaker, The Oil Pollution Act of 1990: Federal Judicial Interpretation
Through the End of the Millennium, 12 U.S.F. MAR. L.J. 147 (1999); Browne
Lewis, It's Been 4380 Days and Counting Since EXXON VALDEZ: Is It Time to
Change the Oil Pollution Act of 1990?, 15 TuL. ENvTL. L.J. 97 (2001); Stanley
A. Millan, Escaping the "Black Hole" in the Gulf, 24 TUL. ENVTL. L.J. 41
(2010); Steven R. Swanson, Federalism, the Admiralty, and Oil Spills, 27 J.
MAR. L. & COM. 379 (1996); Steven R. Swanson, OPA 90 + 10: The Oil
Pollution Act of 1990 After Ten Years, 32 J. MAR. L. & CoM. 135 (2001); Susan
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GROSS NEGLIGENCE AND THE OPA
963
The Rivers and Harbours Appropriations Act of 1899 (Refuse
Act) provided for the imposition of a criminal fine of $2,500 for
violations. 20 The statute was used years later as a basis for judicial
inference of a civil cause of action to recover removal or cleanup
costs of obstructions or refuse.21
Congress first passed an Oil Pollution Act in 1924.22 It made
unlawful any unpermitted discharges of any oil by any method into
or upon the coastal navigable waters of the United States.
Violation could lead to a misdemeanor fine of $500 to $2,500
and/or imprisonment for up to a year. Because this was a criminal
statute, it would have required due process, including a requisite
finding of an intentional act. It made no mention of negligent
discharges.
The 1924 OPA was amended in 1966 along with the Federal
Water Pollution Control Act of 1948 (WPCA) in a statute to be
called the "Clean Water Restoration Act of 1966.",23 The amended
1924 OPA provided for a civil cause of action by the government
against a discharger in addition to criminal penalties. The OPA
brought the concept of gross negligence into the law of oil spills
through its definition of "discharge": "(3) 'discharge' means any
grossly negligent, or willful spilling, leaking, pumping, pouring,
emitting, or emptying of oil." 2 Because the same discharge might
lead to civil or criminal proceedings, perhaps the "grossly
negligent" standard was brought in so that due process might be
satisfied; as will be developed below, in criminal law acts that are
characterized as merely negligent are generally thought not to be
subject to criminal prosecution because of a lack of the requisite
intent or "mens rea."
The WPCA declared that the pollution of interstate waters
occurring in or adjacent to any state or states and endangering the
health or welfare of persons in a state (other than that in which the
discharge originated), was a public nuisance and was subject to
Molero Vance & Paul N. Vance, OPA 90 in 2010: A Maritime Perspective, 24
TuL. ENVTL. L.J. 113 (2010).
20. River and Harbours Appropriation Act of 1899, ch. 425, § 16, 30 Stat.
1121, 1153 (codified at 33 U.S.C. § 411 (2006)).
21. Wyandotte Transp. Co. v. United States, 389 U.S. 191, 204 (1967);
United States v. Perma Paving Co., 332 F.2d 754 (2d Cir. 1964); United States
v. Colgate-Palmolive Co., 375 F. Supp. 962 (D. Kan. 1974).
22. Oil Pollution Act of 1924, ch. 316, 43 Stat. 604.
23. Clean Water Restoration Act of 1966, Pub. L. No. 89-753, sec. 211(a),
80 Stat. 1246, 1252-54.
24. Id. sec. 211(a), § 2(3), 80 Stat. at 1253.
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LOUISIANA LAW REVIEW
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abatement as provided by the WPCA. 2 5 Its goal was more to foster
interstate cooperation on water pollution than to punish acts of
pollution or impose liability for cleanup.
With the Water Quality Improvement Act of 1970 (WQIA)
legislation began to come to a form recognizable as that which was
drawn upon for the OPA of 1990.26 The WQIA significantly
amended the 1948 WPCA. Section 11 of the redesignated
provisions was headed "Control of Pollution by Oil."2 This
amendment includes, for the first time, the distinctions made
among the potential dischargers of oil: vessels, onshore facilities,
and offshore facilities, with liabilities and responsibilities tailored
to each. The WQIA provided for limited liability without fault for
government cleanup costs. Liability for such costs was unlimited,
however, "where the United States can show that such discharge
was the result of willful negligence or willful misconduct within
the privity and knowledge of the owner." 28 Recognizing that the
same actions might be governed by the Outer Continental Shelf
Lands Act (OCSLA), the 1970 WQIA provided that "(2) The
provisions of this subsection shall not apply in any case where
liability is established pursuant to the Outer Continental Shelf
Lands Act." 29
The FWPCA of 1972 superseded the WQIA.3 0 With the
FWPCA, Congress reorganized the water pollution laws. The 1972
amendments brought hazardous substances under the same
regulatory regime as for oil spills. The FWPCA retained the
structure and language of the 1970 WQIA with its separate
treatment of vessels, onshore facilities, and offshore facilities.
Retained also were the features of limited liability subject to the
exception where the United States could show that an unlawful
discharge was the result of willful negligence or willful misconduct
within the privity and knowledge of the owner.
25. Water Pollution Control Act, Pub. L. No. 80-845, ch. 758, 62 Stat. 1155
(1948).
26. Water Quality Improvement Act of 1970, Pub. L. No. 91-224, 84 Stat. 91.
27. Id. sec. 102, § 11, 84 Stat. at 91.
28. Id. § 11(f)(1), 84 Stat. at 94.
29. Id. § 1 (i)(2), 84 Stat. at 96.
30. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.
92-500, 86 Stat. 816.
31. On the shift in language in the 1990 OPA (which omits "privity"), see
Frank Anders, Comment, OPA 90: Is United States Government Sole-Fault
Negligence, Gross Negligence, or Willful Misconduct a Defense Against
Responsible Party Liability?, 15 U.S.F. MAR. L.J. 223, 245 (2002) ("Congress
removed the 'privity and knowledge' clause because . .. Congress believed that
the 'privity' defense allowed tanker owners to immunize themselves by claiming
they had no knowledge of the negligence of their crews."). The legislative
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GROSS NEGLIGENCE AND THE OPA
965
The Trans-Alaska Pipeline Authorization Act of 1973
established a compensation fund in an amount of $100,000,000,
based on a five-cents-per-barrel tax on all oil passing through the
Trans-Alaska Pipeline. 32 The fund was to cover "vessel-source"
spills, that is, damage caused by vessels operating between the
pipeline terminals and United States ports. Although it imposed
strict liability on the owner and operator of the vessel, the statute
provided for a cap of $14,000,000, beyond which the
compensation fund would cover liability. Damages resulting from
activities along the Trans-Alaska Pipeline right-of-way were to be
compensated by the holders of the right-of-way; they were strictly
liable to all damaged parties, public or private, without regard to
fault for such damages. However, liability under this provision was
limited to $50,000,000 for any one incident, and the holders of the
right-of-way or permit were to be liable for any claim allowed in
proportion to their ownership interest in the right-of-way or permit.
The Trans-Alaska Pipeline Authorization Act provided that
liability of such holders for damages in excess of $50,000,000 was
to be in accord with ordinary rules of negligence. Thus the TransAlaska Pipeline Authorization Act combined features of capped
strict liability, with further damages governed by negligence
standards.
The Deepwater Port Act of 1974 prohibited oil discharges into
the sea from any of the facilities of a port or from any vessel
operating to or from the port or in surrounding safety zones. 33 it
established strict liability for cleanup costs and damages that result
from a discharge of oil. As with the FWPCA, it provided for
limitations on liability for spills, "except that if it can be shown
that such discharge was the result of gross negligence or willful
misconduct within the privity and knowledge of the owner or
operator, such owner and operator shall be jointly and severally
liable for the full amount of all cleanup costs and damages." 34
Enacted in 1953, the Outer Continental Shelf Lands Act
governs the development of federally owned offshore oil and gas
history on "willful negligence" in the FWPCA is the basis of the decision in
Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 613 (4th Cir.
1979). The court found negligence but not "willful negligence." Id. at 614.
32. Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93-153, § 204, 87
Stat. 576, 586-88 (1973).
33. Deepwater Port Act of 1974, Pub. L. No. 93-627, § 18, 88 Stat. 2126,
2141-45 (1975).
34. Id. § 18(d), 88 Stat. at 2142 (emphasis added).
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resources. 35 In 1978 amendments to the OCSLA imposed a strict
liability regime for cleanup and damages on owners and operators
of any Outer Continental Shelf (OCS) facility and on vessels
operating in adjacent waters that carry oil from the OCS. 36 It
established an offshore oil pollution fund, authorized at a $200
million level, that was financed by a three-cent-per-barrel fee on
all OCS oil. The strict liability was capped at $250,000 or $300 per
gross ton, whichever was greater, in the case of a vessel; and in the
case of an offshore facility, the total of removal and cleanup costs
and an amount limited to $35,000,000 for all damages. However,
the caps did not apply if:
the incident is caused primarily by willful misconduct or
gross negligence, within the privity or knowledge of the
owner or operator, or is caused primarily by a violation,
within the privity or knowledge of the owner or operator, of
applicable safety, construction, or operatin standards or
regulations of the Federal Government ... .
The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA) contains provisions for
liability, provisions for discharge response management, and
funding provisions similar to those for oil spills and distinguishes
among vessels, onshore facilities, and offshore facilities.3 8
CERCLA covers responses and liability for hazardous substances
(not covered by FWPCA or OPA), which can occur in connection
with an oil spill. As enacted in 1980, the CERCLA capped liability
for facilities at $50,000,000, but the wording of the section that
excepted an actor from the cap was "willful misconduct or willful
negligence" rather than "willful misconduct or gross negligence."
It did, however, parallel the "privity" provision of the FWPCA.
Despite being amended in 1986, 1994, 1996, and 2002, this aspect
of limiting the liability was left unchanged, so that the present
wording of the relevant subsection is:
(2) Notwithstanding the limitations in paragraph (1) of this
subsection, the liability of an owner or operator or other
35. Outer Continental Shelf Lands Act, Pub. L. No. 83-212, ch. 345, 67
Stat. 462 (1953) (codified as amended at 43 U.S.C. §§ 1331-1356 (2006))
(granting the U.S. jurisdiction over the submerged lands of the Outer
Continental Shelf).
36. Outer Continental Shelf Lands Act of 1978, Pub. L. No. 95-372, 92 Stat.
629.
37. Id. § 304(b), 92 Stat. at 675-76 (emphasis added).
38. Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767.
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GROSS NEGLIGENCE AND THE OPA
967
responsible person under this section shall be the full and
total costs of response and damages, if (A)(i) the release or
threat of release of a hazardous substance was the result of
willful misconduct or willful negligence within the privity
or knowledge of such person, or (ii) the primary cause of
the release was a violation (within the privity or knowledge
of such person) of applicable safety, construction, or
operating standards or regulations.... 3
It did, however, also have a provision respecting gross
negligence. This was in connection with encouraging parties to
take steps to render care, assistance, or advice in accordance with
the national contingency plan or at the direction of an on-scene
coordinator appointed under such plan, with respect to hazardous
incidents. It provided immunity "under this title" for damages
arising out of such actions taken or omitted in the course of
providing such assistance. But the immunity provision would not
preclude liability for such damages "as the result of gross
negligence or intentional misconduct on the part of such person."A0
The provision stated: "For the purposes of the preceding sentence,
reckless, willful, or wanton misconduct shall constitute gross
negligence. ,,41
II. COMPOUND TERMS, FACTS AND NORMS, AND TORT LAW
A. Compound Term
How does the human mind use language? Oral language begins
with individual sounds and written language begins with individual
markings. We focus here on the written language. Individual letters
(26 in English plus markings of punctuation plus the absence of
marking, to denote termination of units) are aggregated into basic
units referred to as morphemes (the smallest functioning units in
39. 42 U.S.C. § 9607(c)(2) (emphasis added).
40. Id.
41. Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, § 107(d), 94 Stat. at 2783. The Act was subsequently amended in
1986, Pub. L. No. 99-499, 100 Stat. 1613, to allow liability "in general" for
negligent acts undertaken by those rendering assistance, 42 U.S.C. § 9607(d)(1),
but continuing the heightened immunity for "state and local governments":
"This paragraph shall not preclude liability for costs or damages as a result of
gross negligence or intentional misconduct by the State or local government. For
the purpose of the preceding sentence, reckless, willful, or wanton misconduct
shall constitute gross negligence." 42 U.S.C. § 9607(d)(2). The indication here is
that Congress equates "gross negligence" with "reckless, willful, or wanton
misconduct," in contrast to "negligence."
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the composition of words) that may be words themselves or are the
basis for words. Words are aggregated into sentences and
sentences into paragraphs and so forth. Because we hear linearly
and we see writing linearly, we tend to think that linearity is a
characteristic of thought. This, however, is not how language and
thought relate.
Imagine a line strung between two points. Markings
(meaningless graphemes) are hung one by one onto the line until a
thought is invoked (or evoked). "T" followed by "h" followed by
"e" followed by a space (which is the absence of a mark). We will
now see the definite article "The," which brings nothing in itself to
mind. Next follows "c," then "a," then "t," and a space. We now
have "The cat." Does this evoke an image of the head of a fourlegged creature with short ears, fur, and a tail? Does the cat have
any coloration to its fur, any height or weight? Next on the string
appearing seriatim are "s," "a," and "t. This forms "sat," which
the mind says is the morpheme "sit" modified by a rule of
morphology to create "sit-past form-sat." Does the previous
image of a tailed, four-legged creature dissolve into one
recumbent, with no legs or tail visible? Does the mind conjure a
place where the cat sat or is it just an essence in the mind? Does
"sat" convey the notion of the movement of sitting or does it
convey a notion of the cat in a stationary position? Next on the
string appear the markings "on the mat." Does the mind form a
moving scene in which a cat reclines itself onto a mat? Does the
mat have any characteristics, such as material (cloth, paper, vinyl,
rubber), form (rectangle, square, oval), color, weight, and so forth?
The short answer to the above questions is that the mind
operates very rapidly and aggregates all the markings into a single
unit or structure: "The cat sat on the mat."4 2 Within the rules of
syntax and grammar, the same unit might be expressed in a
different order: "On the mat sat the cat." Either of these
aggregations of markings can produce a single image of multiple
parts in the human mind. If numerous persons were asked to paint
a picture based on the sentence, their pictures would have some
features in common but necessarily many variations as well,
reflecting the unexpressed but necessary characteristics. A
colorless cat and a formless mat cannot be painted. Identical words
The example used here is derived from ROY HARs, THE LANGUAGE
Discussing Sassure's notion of linearity, Harris
observes: "[T]rue though it is that The cat sat on the mat is a sentence which
takes a finite length of time to utter, that fact itself does not impose linearity of
structure any more than the fact that it takes the painter a finite length of time to
execute brush strokes on the canvas imposes a linearity of structure upon the
painting." Id.
42.
MACHINE 67-68 (1987).
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will have many different representations for various individuals,
because use of language draws upon many past associations. The
words individuals use might be identical, but the thoughts and
images evoked might be quite different without the persons even
being aware of their differences. In fact, the mind probably does
not produce a complete image with the quoted sentence. Instead,
the sentence is just the beginning of filling in additional detail
already in the mind or provided later as needed. If part of an ongoing communication, many elements of detail outside the
sentence will have been supplied already.
What sort of task would we be imposing if we asked the same
persons to depict, define, or explain "gross negligence" or "willful
misconduct" rather than a cat? The burdens of words and the
mental processes would be rather different, especially because
these terms are not part of common English conversational usage
and because these are compound terms relating purely to concepts
rather than things. But as before, the depiction or explanation will
generally arise within a context, with many details already supplied
or subject to further development.
B. Things andNon-Things-Facts andNorms
A fundamental distinction is made in philosophy, especially in
legal philosophy, between fact and norm. A fact relates to a thing
experienced by the senses. A norm is a judgment about human
actions. Generally, a norm is a standard of conduct, and that
standard is expected to guide choices and judgments of humans.
Machines, other inanimate objects, and all living things that lack
reason have behavior determined by laws, but these are laws of
nature rather than human laws. Although we will treat specific
instances of gross negligence or willful misconduct as involving a
question of "fact" for a fact finder, we must not lose sight that here
"fact" is a judgment (indeed, a moral judgment) about interrelated
facts; "gross negligence" is not an empirical fact-not a thing.
We distinguish between things and non-things. Our language is
such that nouns can name both things and non-things, and thus we
can believe that both have an existence that is not dissimilar. By
"things" we mean physical entities that have characteristics that are
the subject of sensory experience. This "chair" is a thing. The word
"chair" is used to name a category of things sharing characteristics
that are the subject of sensory experience. A "nominalist" would
say that "chair" exists only as a convenient collective name for
shared characteristics of many individual chairs. The chairs all
have empirical, i.e., physical, existence, though "chair" is merely a
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name. A particular chair is a thing, a particular desk is a thing, and
a particular drilling rig is a thing.
We give names to "non-things" that are not the subject of
sensory experience but whose names may still be used to attribute
characteristics to things (or as we shall see, even conduct). There
are Kantian "categories" that the mind perceives as qualities of
things but are actually not things in themselves. A rock may have
weight and mass as physical characteristics, but weight and mass
are "non-things." And when we describe the weight or mass of a
thing as "heavy" or "large," we are using these terms as
comparatives: we may say a rock is "heavy," but "heavy" must
always be in reference to a human-imposed standard of
comparison to some other thing. A 50-pound weight is very heavy
if we are describing a desk object to hold down papers but very
light if we are describing an object used in a contest of lifting
strength. Thus we see "weight" may be a physical attribute of a
thing, but "heavy" is always a comparison that has no meaning
outside of a given context. An object is "near" or "far" always in
relation to a reference point and to context. One town is "far" from
another if walking is our means of transport but very "near" if by
plane. So it is with description of human actions. When we
attribute qualities to human actions we are always doing so in
relation to a standard (a norm) and within a context. So too with an
action being "very negligent": this judgment can only be made by
reference to a standard and within a context. Deviation by an inch
from a margin in painting a house may be slight negligence, but
deviating by an inch in heart surgery will be fatal negligence.
Now, a norm is not a fact or thing, just as "heavy" is not a fact
or thing. Vessel A collided with dock B. Was this act or event
"negligent"? Was it "willful"? The collision itself is merely fact,
neither negligent nor willful. It is not a proper use of language to
describe a collision as a "negligent collision." More properly, one
could say, "This collision resulted from negligence (or from a
willful act)." In so speaking we recognize that we are attributing
characteristics (1) to human actions in the manner of operation of
the vessel by comparison to a norm of operation from some source
and (2) to the state of mind of the vessel's operator by comparison
to a norm from some source. In other words, "negligence" is a
characteristic of the manner of operation and the state of mind of
the operator.
Another feature of language with significance for law must
next be observed. The human mind viewing a sentence (such as
"The cat is on the mat") would nearly always ask, "What is the
purpose of this sentence?" Is it part of a story? Is it an attempt to
locate a cat within a room in relation to other creatures, some of
2011]
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which might be in a chair or on a floor? Are we informing a reader
that the cat "sat" rather than "stood" on the mat? Why do we want
to know that a cat sat on a mat? Human minds associate
communication between persons through language as having
purpose. Legal language serves purposes in specific contexts in
law, and this fact must affect our interpretation of those terms. If
we wish to describe an act or series of acts as "grossly negligent,"
why are we doing so? What is our purpose for the characterization,
i.e., the judgment on the quality (culpability) of a human act?
Gross negligence and willful misconduct perhaps can be
thought of as special instances of "negligence" and "misconduct."
Like the word "cat" or "bird" (to shift from a feline to an avian
metaphor), the terms "negligence" and "misconduct" name
categories that consist of members with differing characteristics. 4 3
We think of a prototype of a bird-such as a blue jay or sparrowand we think of an atypical bird, such as an emu. We find that the
boundaries of the characteristics of the members of the family or
category of birds are fuzzy.
We can identify subfamilies of birds by purpose or function,
such as flying or non-flying. Even here, the boundaries are very
imprecise. Is a chicken a flying bird? It cannot soar like the eagle,
and its primary method of locomotion is by its feet. Reasonable
people might differ as to whether a chicken should be labeled a
flying bird. We could identify swimming birds and non-swimming
birds. The penguin surely is an example of the former, but is a
duck or a flamingo (a water-bird, but one that only stands or walks
in water)? Classifying negligence as slight, ordinary, or gross is
similarly imprecise and is related to the function or purpose of the
classification. As suggested earlier, courts in a number of states
have found the classification so imprecise that they have
abandoned the effort.
Gross negligence and willful misconduct may both be
considered compounds. A compound is a "linguistic unit which is
composed of elements that function independently in other
circumstances."" Compound words consist of two or more free
morphemes (or lexemes-units of semantic value)-as in
compound nouns like "washing machine." Compound terms are a
lexeme made up of a sequence of two or more lexemes that may
have properties that differ from the properties of the individual
lexemes, such as "kick the bucket" meaning "die." Another
example of a compound that shows the two elements meaning
43. STEVEN PINKER, WORDs AND RULES 270-75 (1999).
44. DAVID CRYSTAL, DICTIONARY OF LINGUISTICS AND
ed. 1997).
PHONETICS
78 (4th
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something quite different when joined from when separate is "pink
slip." This compound unit has a well-known meaning as a letter or
other communication terminating employment. One might receive
a "pink slip" that is neither pink nor a slip. It would not be
incoherent to refer to a "green pink slip," for "pink" no longer has
any reference to color when joined with "slip" in the context of
employment. The term now describes a specific function or
purpose of the communication, not the form, nor the quality of
color. The etymology of "pink slip" may have been with a
termination notice that was a "pink" "slip," but the meaning is now
divorced from its origin. In the context of employment, "pink slip"
has a clear meaning as a single unit of speech, writing, or thought.
This does not mean there cannot be continuing uses of the separate
elements (as in a pink ribbon or a small slip of paper). In a context
other than employment, the two together will not constitute a
compound, such as speaking of a pink slip to be found in the
lingerie department of a store. Nor does the fact that a compound
term exists mean that it is the sole method for expressing a
particular concept. "Termination notice" may mean the same thing
as "pink slip." Numerous compound terms have lost identification
with one or more of the words that make them up, such as
"Labrador retriever" or "purple prose" or "silk stocking firm."
"Navigable waters" and "responsible party" are examples of
defined compound terms of the OPA, while "gross negligence" and
"willful misconduct" are undefined compound terms of the OPA.
"Gross negligence" and "willful misconduct" are within
categories found in the law of "negligence" and "misconduct," but
they are special members of each. Although they consist of words
found in common English (and some judges have regarded such
terms as "ordinary English"), they have almost exclusive use in
legal applications. A close relative of theirs in the legal lexicon is
"proximate cause"; it, too, is a compound term, largely
incomprehensible or incoherent to those untrained in law, as are
"minimum contacts" or "primary jurisdiction." Despite the best
efforts to formulate a consistent rule to define each of these, the
boundaries separating them from other members of the
"negligence" and "misconduct" families are fuzzy at the margins.
And unlike the terms "cat" and "bird" (or "fault" in tennis or
geology), physical features cannot be used in defining members of
the family to which the terms apply. As Frederick Schauer has said
of "liberty" and "equality," the terms "gross negligence" and
"willful misconduct" (as well as their close associate "proximate
cause") "are pervasively indeterminate. It is not that such terms
have no content whatsoever; it is that every application, every
concretization, every instantiation requires the addition of
2011]
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supplementary premises to apply the general term to specific
cases."A5 Pervasive indeterminacy has not deterred courts and
others from giving content to such terms and juries from applying
them, even with the only requirement being "a mere gleam,
glimmer, spark, the least particle, the smallest trace, a scintilla, in
support of the theory of the complaint."46 Because Congress has
chosen to include these terms as part of the OPA, a court (or
perhaps a jury) cannot avoid giving or finding their content.
An examination of the characteristics and usages of gross
negligence and willful misconduct gives some guidance to what
courts and statutes have treated as "gross negligence" and "willful
misconduct" over centuries for several purposes and thus
illuminates what Congress, state legislatures, and courts likely
intend when they employ the terms. The focus here will be on
"gross negligence," but it is often treated as indistinct from or
identical with "willful misconduct." "Gross negligence" is a
compound, with ancient roots, that developed as a legal term in
common law torts but has become significant in contract law and
in a variety of statutes.
A determination of "gross negligence" is to serve a specific
purpose or function, not merely to describe negligence by an
adjective for which another adjective could function. Contrary to
the quip of Baron Rolfe who said he "could see no difference
between negligence and gross negligence; that it was the same
thing, with the addition of a vituperative epithet,"A7 to judge that a
party has been "very negligent" is not a very good substitute for
judging the party as "grossly negligent." This can be seen by
substituting others synonyms for "gross"-such as "arrant
negligence," "immoderate negligence," "inordinate negligence," or
"manifest negligence." An individual might use such a term with
the same intent, but these variants would find no common usage in
case law or statutes and would serve no apparent purpose (other
than vituperation). Terms like "gross negligence," "willful
misconduct," and "proximate cause" are examples of what
Frederick Schauer has called "lawspeak," a word that "can be
viewed as a language for a subcommunity in the community of
English speakers, capable of doing within the subcommunity what
ordinary language does within the larger community of English
speakers." 8
45. Frederick Schauer, Formalism, 97 YALE L.J. 509, 514 (1988).
46. Lankford v. Mong, 214 So. 2d 301, 302 (Ala. 1968).
47. Wilson v. Brett, (1843) 152 Eng. Rep. 737 (Exch.) 740; 11 M. & W.
113, 115-16.
48. Schauer, supra note 45, at 528.
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The meaning of "gross negligence," then, is tied to the function
to which the label may be subservient. As with many other legal
determinations, it may be a fine point to say that the category
determination or the consequence came first. To return to the
metaphor of the line on which markings are strung, "gross
negligence" has no significance until further markings are strung
on the line, including "exemplary/punitive
damages,"
"contributory negligence," or "immunity from liability." Once the
string of words is complete, the words form a single unit of
thought. We shall return to this in the discussion of function below.
C Tort Law
Concepts of tort, contract, property, and crime are social
phenomena in most cultures and have a long history in Western
political and legal systems. These legal categories probably
correspond to categories in the human mind about relations of
individuals to one another as a means of organizing facts about
relationships, just as "family" and "family law" arise from facts
arising from biological relationships. Thus property concerns one's
relations to particular things (corporeal, incorporeal, realty,
personalty, etc.); contract pertains to voluntary associations; tort
relates to duties owed to other persons generally; and crime
pertains to actions toward others that threaten a social order more
seriously than torts. These categories overlap because relationships
overlap. The acts toward one individual can constitute a tort
(intentional or negligent) and also appear as a threat to the
community at large, thus a crime.
In tort law (whether common law or statutory) we are
concerned with bilateral relations, persons to other persons (or
their property). What one person does with regard to his or her
person or property has largely been beyond the reckoning of jural
relations. A person may be "negligent" in his or her actions, even
recklessly so, and that is of no concern to law or society until that
conduct injures or threatens to injure another. A man may drive his
own car in a drunken stupor on his own property while firing a gun
into his own trees, and he is not "negli ent" if his conduct does not
have the potential to injure others. The negligence is not a
characteristic of behavior but a reference to the potential
consequences of the behavior.
49. Of course his insurer may decline to cover damage to his car or trees or
person, but that involves the actor's relations with a third party. They may have
allocated responsibility by contract.
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Our concept of "negligence" thus necessarily involves both
other persons and a context of one's actions. Second, a degree of
negligence pertains not to the act under consideration in isolation.
A third point is that until an injury by another person is
experienced, there is no occasion to make a judgment about the
quality of conduct of the actor. Although it is true that the state
may be concerned from a criminal perspective whether a person
has driven negligently, that is a different inquiry from tort.
Inevitably, then, in tort the determinations of negligence and injury
to another arise simultaneously, and the jural relation of the two
persons focuses upon both parties, actor and injured.
In the mind, the degree of negligence is linked to the
magnitude of the injury. A negligent extinguishment of a campfire
or shooting of fireworks will be deemed minor when the injury is
limited to a few feet of brush next to the fire. The same act of
shooting a firework is more likely to be characterized as "gross
negligence" when it takes place on a dry dad and the resulting fire
destroys several thousand acres of property.
A reading of even a small number of the thousands of cases
that take up and apply gross negligence as a standard readily
confirms that "gross negligence" is not so much a description as it
is a conclusion, one that merges the actor's act(s), the actor's state
of mind, and the injured's injury. The term "gross negligence" in
these cases identifies both the action of the wrongdoer and the
effects of that action. Thus the degree of negligence and magnitude
of risk are closely connected. 1 In the 1822 case of Tracy v. Wood,
Supreme Court Justice Story, sitting as circuit justice, noted:
If a bag of apples were left in a street for a short time
without a person to guard it, it would most certainly not be
more than ordinary neglect. But if the bag were of jewels or
of gold, such conduct would be gross negligence. In short
care and diligence are to be proportioned to the value of the
goods, and the temptation and facility of stealing them and
the danger of losing them.5 2
To paraphrase: the greater the degree of potential (or actual)
harm, the greater the degree of negligence.
50. Batt v. State, 901 P.2d 664 (Nev. 1995).
51. See Cecil A. Wright, Gross Negligence, 33 U. TORONTO L.J. 184, 201
(1983) ("Once establish[ed] that the risk to which the plaintiff or his property is
exposed is of unusually high magnitude and that as opposed to that the utility of
the act or omission causing the risk is of little or no social value, liability follows
as a matter of course.").
52. Tracy v. Wood, 24 F. Cas. 117 (Story, Circuit Justice, C.C.D.R.I. 1822).
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III. SOURCES
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OF NORMS AND THEIR INTERPRETATION
A norm of behavior is a construct of social reality.5 3 For
present purposes, i.e., human law, a norm exists only in the minds
of human beings. A norm has content only as human minds give it
content. The question to be addressed, then, is not, "What is 'gross
negligence' or 'willful misconduct'?," for they are not things that
have empirical existence. They are always human judgments.
Rather, we must ask, "What do relevant persons say 'gross
negligence' or 'willful misconduct' is?" The nature and quality of
a norm depends upon its source. For purposes of the work of law
courts which will apply norms, the source of a norm may be
another court (i.e., common law), a legislative body or an agency
of the government authorized to specify norms, or the parties to an
agreement.
A. Common Law, Judicially CreatedNorms
Common law courts generally have power to specify and apply
norms because the legislature (sovereign) has authorized the courts
to do so, often without providing the content of the norm. Because
much of tort law in the United States came from an original
common source, the common law of England, we often operate
from an assumption that tort law is the same from state to state.5 4
This is an illusion, albeit an occasionally attractive one. In reality,
each state has its own law of torts. If the supreme court of one state
looks to precedent in another state it is by grace and not by the
authority of the other state. Thus the standard of "negligence" in
one state is a different standard of "negligence" from that in
another state even if the content and phrasing of the standard is
53.
See generally JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY
(1995).
54. New states often explicitly adopt the law of the prior sovereign,
providing it with fresh authority. In the states of the United States, these
adoptions have been called "reception statutes," expressly "receiving" the
common law of England as of a specific date. See generally MORTON J.
HORWITZ, THE TRANSFORMATION OF AMERICAN LAW (1780-1860), at 4 (1977);
Joseph Fred Benson, Reception of the Common Law in Missouri: Section 1.010
as Interpreted by the Supreme Court of Missouri, 67 Mo. L. REV. 595, 605-06
(2002). In contrast, the constitution of the Republic of Texas incorporated the
law of a different sovereignty from its predecessor, Mexico: "The Congress
shall, as early as practicable, introduce, by statute, the common law of England,
with such modifications as our circumstances, in their judgment, may require;
and in all criminal cases, the common law shall be the rule of decision."
REPUBLIC OF TEX. CONST. of 1836, art. IV,
§ 13.
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identical in both; this is because its source is from a different
sovereign.
By and large it has been acceptable for state and federal
lawmakers to leave substantial areas of private law-tort, contract,
and property law-for development by common law courts. A part
of this acceptance has been the understanding that the function of
the courts is to administer rectificatory, or restorative or corrective,
justice. Tort law (or the law of delict) has ancient roots in human
thought about natural justice, whether one posits the existence of a
natural moral order55 or accepts the modem theory that a sense of
justice arises from a Darwinian, evolution-based, sociobiological,
epigenetic imperative of reciprocity conducive to species
survival. 6 A concept of natural justice is that the courts should
restore to the persons injured the amount by which they were
injured.5 7 Redress of private grievance through an award of
damages has been a feature of European law for several thousand
years. Although disputed by some scholars in the late nineteenth
century and much of the twentieth century, other scholars have
reclaimed the ancient roots of tort law as a fault-based system.5 8
The development of tort law by a judiciary has an ancient basis
in the concept of natural justice-from the time of the ancient
Greeks, if not earlier. The Code of Hammurabi contained elements
of restoration to a victim of goods wrongfully appropriated or
damaged by neglect and also recognized the importance of
intention in determining the penalty for wrongdoing.5 Roman law
divided negligence into three degrees: lata culpa (gross
negligence), levis culpa (ordinary neglect), and levissima culpa
55. 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND
106 (7th ed. 1775) ("[I]t is a settled and invariable principle in the laws of
England, that every right when withheld must have a remedy, and every injury
its proper redress.").
56. Edward 0. Wilson, The Biological Basis of Morality, ATL. MONTHLY,
Apr. 1998, at 53. See also the utilitarian approach of ROBERT WRIGHT, THE
MORAL ANIMAL: WHY WE ARE, THE WAY WE ARE: THE NEW SCIENCE OF
EVOLUTIONARY PSYCHOLOGY 335-44 (1994).
57. Stephen R. Perry, The Moral Foundationsof Tort Law, 77 IOWA L. REV.
449 (1992); Ernest J. Weinrib, The Special Morality of Tort Law, 34 MCGILL
L.J. 403 (1989); Ernest J. Weinrib, UnderstandingTort Law, 23 VAL. U. L. REV.
485 (1989).
58. Sheldon D. Elliott, Degrees of Negligence, 6 S. CAL. L. REV. 91 (1932);
George P. Fletcher, Fairnessand Utility in Tort Theory, 85 HARv. L. REV. 537,
540 (1972); Nathan Isaacs, Fault and Liability: Two Views of Legal
Development, 31 HARV. L. REV. 954, 955 (1918); Nelson P. Miller, An Ancient
Law of Care, 26 WHITTIER L. REV. 3 (2004); Nelson P. Miller, Seven
Conceptualand HistoricalErrors in Tort Law, 40 TORT TRIAL & INS. PRAC. L.J.
59 (2004).
59. Miller, An Ancient Law of Care, supra note 58, at 24-25.
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(slight neglect).6 0 As with modem Anglo-American law, Roman
law distinguished civil tort actions from alternative criminal
proceedings. 6 1
Rather than recount the academic controversies of recent years,
we can provide the expression of natural justice given anciently by
Aristotle:
[T]he justice in transactions between man and man is a sort
of equality indeed, and the injustice a sort of inequality; not
according to that kind of proportion, however, but
according to arithmetical proportion. 62 For it makes no
difference whether a good man has defrauded a bad man or
a bad man a good one, nor whether it is a good or a bad
man that has committed adultery; the law looks only to the
distinctive character of the injury, 63 and treats the parties as
equal, if one is in the wrong and the other is being
60. Id at 40.
61. Id at 41.
62. See ARISTOTLE, THE NICOMACHEAN ETHICS bk. V (W.D. Ross trans.,
1925) (c. 384 B.C.E.), reprintedin GEORGE C. CHRISTIE & PATRICK H. MARTIN,
JURISPRUDENCE: TEXT AND READINGS ON THE PHILOSOPHY OF LAW 93, 99 trans.
n.67 (3d ed. 2008):
The problem of "rectificatory justice" has nothing to do with
punishment proper but is only that of rectifying a wrong that has been
done, by awarding damages; i.e.[,] rectificatory justice is that of the
civil, not that of the criminal courts. The parties are treated by the court
as equal (since a law court is not a court of morals), and the wrongful
act is reckoned as having brought equal gain to the wrong-doer and loss
to his victim; it brings A to the position A + C, and B to the position B
- C. The judge's task is to find the arithmetical mean between these,
and this he does by transferring C from A to B[.] Thus (A being treated
as = B) we get the arithmetical "proportion"
(A + C) - (A + C - C)=
(A + C - C) - (B - C)
or
(A + C) - (B - C + C)=
(B - C + C) - (B - C).
63. The Supreme Court has echoed Aristotle in establishing (or finding)
constitutional limitations on the evidence that may be considered in an award of
punitive damages. Speaking for the Court, Justice Kennedy wrote:
The courts awarded punitive damages to punish and deter conduct that
bore no relation to the [plaintiffs'] harm. A defendant's dissimilar acts,
independent from the acts upon which liability was premised, may not
serve as the basis for punitive damages. A defendant should be
punished for the conduct that harmed the plaintiff, not for being an
unsavory individual or business. Due process does not permit courts, in
the calculation of punitive damages, to adjudicate the merits of other
parties' hypothetical claims against a defendant under the guise of the
reprehensibility analysis ....
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 423 (2003).
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GROSS NEGLIGENCE AND THE OPA
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wronged, and if one inflicted injury and the other has
received it. Therefore, this kind of injustice being an
inequality, the judge tries to equalize it; for in the case also
in which one has received and the other has inflicted a
wound, or one has slain and the other been slain, the
suffering and the action have been unequally distributed;
but the judge tries to equalize things by means of the
penalty, taking away from the gain of the assailant. For the
term "gain" is applied generally to such cases, even if it be
not a term appropriate to certain cases, e.g.[,] to the person
who inflicts a wound-and "loss" to the sufferer; at all
events when the suffering has been estimated, the one is
called loss and the other gain. Therefore the equal is
intermediate between the greater and the less, but the gain
and the loss are respectively greater and less in contrary
ways; more of the good and less of the evil are gain, and
the contrary is loss; intermediate between them is, as we
saw, the equal, which we say is just; therefore corrective
justice will be the intermediate between loss and gain. This
is why when people dispute, they take refuge in the judge;
and to go to the judge is to go to justice; for the nature of
the judge is to be a sort of animate justice; and they seek
the judge as an intermediate, and in some states they call
judges mediators, on the assumption that if they get what is
intermediate they will get what is just. The just, then, is an
intermediate, since the judge is so. Now the judge restores
equality; it is as though there were a line divided into
unequal parts, and he took away that by which the greater
segment exceeds the half, and added it to the smaller
segment. And when the whole has been equally divided,
then they say they have "their own"-[i.e.,] when they have
got what is equal.64
As suggested from the Aristotle quote, in tort and property law,
injury has generally been measured by direct damages-a
difference in value before and after the injury-and by the
expectation interest in contracts. As the law has developed in each
of these three categories, the foreseeability of injury to the actor
has been a limitation on recovery by an injured person. With
limited exceptions, it has not been thought the role of the common
law courts to punish behavior in tort, except in the category of
64. ARISTOTLE, supra note 62, at 99-100. The author does not read
Aristotle as advancing a pure restitution approach. See Perry, supra note 57, at
455.
980
LOUISIANA LAW REVIEW
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intentional torts, such as battery, assault, and intentional infliction
of mental distress. Instead, the legislatures have been the source of
standards for which punishment of the individual is appropriate,
with punishment exacted by the state through incarceration,
criminal fines, or civil penalties collected by the state and retained
by the state. Generally people have expected the state to give fair
warning of what behavior was expected of individuals so that they
could guide their choices of action accordingly. Because the state
deprives people/wrongdoers of liberty and/or property, and
because the state directly benefits by taking of the property,
interpretive standards have developed that disfavor the state. Penal
statutes are generally read strictly, following a common law
principle of lenity.6
An exception to the default rule of compensation has
developed in tort law concerning punishment. Certain torts have
been regarded as giving rise to punitive or exemplary damages.
The rationale is that penalties should be imposed to deter conduct
by others in similar situations. The expansive imposition of
punitive damages has given rise to concerns about due process on
multiple grounds. Should common law courts and juries both
define forbidden conduct and determine the level of punishment?
Do actors have fair warning of what behavior may lead to what
consequences?
For many years, legal authorities have sought to bring about
some uniformity in areas of private law and public law among the
states, because we are also part of one larger legal entity and share
similar concerns from state to state. National legislation has been
considered in some areas but has generally been rejected as an
approach in the fundamental categories described earlier, that is
tort, contract, property, criminal, 6 and family law. Another
65. See generally Lawrence M. Solan, Law, Language, and Lenity, 40 WM.
& MARY L. REv. 57, 58 (1998). Lenity is the common law principle that "penal
statutes should be strictly construed against the government or parties seeking to
enforce statutory penalties and in favor of the persons on whom penalties are
sought to be imposed." Id. (quoting NORMAN J. SINGER, STATUTES AND
STATUTORY CONSTRUCTION § 59.03 (5th ed. 1992)) (internal quotation marks
omitted).
66. Congress has established national crimes, and this has produced some
questions about constitutional authority to do so. See United States v. Morrison,
529 U.S. 598 (2000) (invalidating the Violence Against Women Act); United
States v. Lopez, 514 U.S. 549 (1995) (invalidating the Gun-Free School Zones
Act of 1990). The Supreme Court itself has developed, through the concept of
individual rights of due process, a sort of uniformity of criminal procedure
binding on the states via the Fourteenth Amendment. See, e.g., Mapp v. Ohio,
367 U.S. 643 (1961) (finding that the due process clause renders the
exclusionary rule applicable to the states).
2011]1
GROSS NEGLIGENCE AND THE OPA
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approach has been to have each sovereign (state) adopt identically
worded statutes so that at least the words will be identical, if not
the source. The paradigm of this approach is the Uniform
Commercial Code, all or most of which has been adopted by
legislation in all states. Even here, uniformity of norms is not
achieved: the state courts have not embraced uniform interpretation
of the identical language,6 7 and some states try to achieve favor for
their own residents by adopting non-uniform provisions.6 A third
attempt at regularity of private law across state lines has been the
creation of Restatements of the Law in various subjects, such as
the Restatement of Torts and the Restatement of Contracts. These
have been promulgated by the American Law Institute, which is
not a legislative body with authority to make binding rules of
behavior. The norms expressed have no more authority than the
author of a learned treatise who describes the practices of courts or
who expresses an opinion of what the law generally has been or
ought to be when applied by a court in the future. A court may
accept or reject the norm expressed by the Restatement (or even a
learned author).
The term "gross negligence" and words of similar import are
common in common law tort cases, and may be found in state
statutes as well as the federal statutes under consideration. Certain
contracts in the oil and gas industry and insurance contracts may
also employ the same term. Separate interpretation of common law
67. A notorious example is that of U.C.C. section 2-207, which has
spawned competing interpretations of identical language. See Northrop Corp. v.
Litronic Indus., 29 F.3d 1173 (7th Cir. 1994); Step-Saver Data Sys., Inc. v.
Wyse Tech., 939 F.2d 91 (3d Cir. 1991); Dorton v. Collins & Aikman Corp.,
453 F.2d 1161 (6th Cir. 1972); Constr. Aggregates Corp. v. Hewitt-Robins, Inc.,
404 F.2d 505 (5th Cir. 1968); Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d
497 (1st Cir. 1962); Douglas G. Baird & Robert Weisberg, Rules, Standards,
and the Battle of the Forms: A Reassessment of § 2-207, 68 VA. L. REv. 1217
(1982); see also ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). In some
areas, such as the overlap between tort and contract law in warranty matters, the
American Law Institute has given states a menu of approaches to choose from,
thereby emphasizing the local character of nominally uniform laws. See, e.g.,
U.C.C. § 2-318 (2003).
68. Terry I. Cross, Oil and Gas ProductLiens-Statutory Security Interests
for Producersand Royalty Owners Under the Statutes of Kansas, New Mexico,
Oklahoma, Texas and Wyoming, 50 CONSUMER FIN. L. Q. REP. 418, 418 (1996).
Because Texas, Wyoming, and Kansas have all designated their products lien
statutes as section 9.319 (or 9-319) of their respective versions of the Uniform
Commercial Code, the statutes for these three states cross-refer to these nonuniform enactments as the "section 9.319 statutes." On the treatment of these
non-uniform statutes, see In re SemCrude, L.P., 407 B.R. 82 (Bankr. D. Del.
2009) (Kansas), and In re SemCrude, L.P., 407 B.R. 112 (Bankr. D. Del. 2009)
(Texas).
98 2
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LOUISIANA LA W RE VIEW
tort terminology, statutes, and contracts each requires some
differences in interpretive factors. It is certainly true that the
standards of tort doctrines or property or contract doctrines and
rulings from state to state may be very similar, but they may also
be very different. 69 So when one seeks to give content to "gross
negligence" or "willful misconduct" one may have to ask first, "In
which state?"; "Under which state statute?"; "Which federal case
or statute?"; or "Under federal admiralty/maritime law?"
Courts and scholars have often rejected the notion of degrees of
negligence. One early work on tort law noted:
I confess myself careless, ignorant, and indifferent upon
this whole subject of the degrees of negligence. It is plain
that such refinements can have no useful place in the
practical administration of justice. Negligence cannot be
divided into three compartments by mathematical lines.
Ordinary jurors, before whom, except in cases in admiralty,
actions grounded on negligence are always tried, are quite
incapable of understanding such refinements..
.
. No effort
can extract from the current American decisions the
conclusion that there are three degees of culpable
negligence-slight, ordinary, and gross.
Thompson's skepticism about degrees of negligence was
shared by the Illinois Supreme Court. The case of Chicago, Rock
Island & Pacific Railway Co. v. Hamler held valid a contract
exempting a railroad from liability to a Pullman porter for
negligent injury, even though the negligence was characterized as
gross.
We are of the opinion that no distinction as to the rights of
the parties can be founded upon speculation as to different
degrees of mere negligence, and that the trial court erred in
instructing the jury to find for the plaintiff if they
concluded that the defendant was guilty of gross
negligence. Formerly, this court, in expounding the
doctrine of comparative negligence, classified negligence
into three degrees, as slight, ordinary, and gross; but that
doctrine was long ago abolished, and, while negligence
69. Implied covenants in oil and gas leases are somewhere between
contract, property, and tort and vary in treatment from state to state. Compare
Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996), with Tawney
v. Columbia Natural Res., L.L.C., 633 S.E.2d 22 (W. Va. 2006).
70. 1 SEYMOUR D. THOMPSON, COMMENTARIES ON THE LAW OF
NEGLIGENCE IN ALL RELATIONS § 18 (1902).
71. 74 N.E. 705 (Ill. 1905).
2011]
GROSS NEGLIGENCE AND THE OPA
983
may since that time have been alluded to in opinions as
gross or slight, no weight has been given to the question,
and no liability has been based on any distinction in
degrees unless the negligence was willful or intentional,
where it assumes an entirely different character from that of
negligence in its ordinary meaning. In negligence, merely,
there is no intention to do a wrongful act or omit the
performance of a duty.72
Other judges have found "gross negligence" to be part of
ordinary language and understanding and easily applied by a ury
of citizens. Under Nebraska's comparative negligence statute the
contributory negligence of a plaintiff would not defeat recovery
where the defendant's negligence was gross and the plaintiffs
negligence was slight in comparison. 74 In a car crash case, the
defendant appealed a judgment for the plaintiff, contending that the
trial judge had not given a proper instruction on the meaning of
"gross negligence" and "slight negligence." 7 5 The court said that
no instruction was necessary:
The complaint relates to the fact that the court did not give
the requested definition of slight negligence and gross
negligence. The court did, however, properly define
negligence, but did not undertake to define the terms
"gross" and "slight" and we think it was not incumbent
upon it so to do. The words "slight" and "gross" are words
of common use which are understood by every one of
ordinary intelligence. An attempt to define these words
would have been superfluous. Any one of common sense
knows that slight negligence actually means small or little
negligence, and that gross negligence means just what it
indicates, gross or great negligence. No error was
committed in the refusal to define words of ordinary
meaning which are in common, every-day use.
B. Statutory Norms
Where a norm of human conduct is the product of state or
federal legislation, one must ask, "What did the legislature
72.
73.
Sess.).
74.
75.
76.
Id. at 707-08.
NEB. REv. STAT.
§ 25-21,185 (West, Westlaw through 2010 2d Reg.
Monasmith v. Cosden Oil Co., 246 N.W. 623, 624 (Neb. 1933).
Id.
Id. at 625.
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LOUISIANA LAW RE VIEW
[Vol. 71
intend?" If government is demanding certain conduct and
punishing misconduct, citizens and other subjects should be able to
know what conduct is expected of them. How can a person
conform to a standard that cannot be known or understood? Did
the legislators intend a particular content to a norm of conduct?
Often a legislature will define a term explicitly. In other instances,
a legislature will leave it to an administrative agency to furnish the
content of a norm. In a great many cases it will be the task of a
court to supply the content of a norm, where inferable from the
words of the statute or the purposes to be served by the statute.
Citizens do not have the resources of a court to inquire into the
meaning of the words of a statute, yet they must conform at peril to
their liberty and their property. The concept of fair warning is
deeply rooted in the federal and state constitutions and finds
expression in Locke's Second Treatise that was the basis for such
constitutions:
[W]hoever has the legislative or supreme power of any
commonwealth, is bound to govern by established standing
laws, promulgated and known to the people, and not by
extemporary decrees; by indifferent and upright judges,
who are to decide controversies by those laws; and to
employ the force of the community at home, only in the
execution of such laws ...
77
The problems of interpreting a congressional statute are
exacerbated in our federal system where Congress may have used
terminology that may have different significance from state to
state. Did Congress intend to have varying interpretations? Did
Congress intend to adopt one meaning from among the different
treatments? Did Congress intend some general meaning, like that
emerging from a statement of principle in the Restatement of Torts
or Restatement of Contracts? Or did Congress have its own unique
meaning, inferable from the purpose and context of the statute?
Perhaps Congress intended to confer on an agency or the courts a
broad authority to develop a meaning on an ad hoc basis. Are the
words of a statute to constrain a court (or agency) or to empower it?
C. Interpretationof Statutory Terms
The problems of interpretation of a congressional statute that
employs terminology found in common law cases is illustrated by
the process of interpretation of the word "employee" in NLRB v.
77. JOHN LOCKE, THE SECOND TREATISE OF GOvERNMENT
reprintedin CHRISTIE & MARTIN, supra note 62, at 297, 315.
§
131 (1689),
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GROSS NEGLIGENCE AND THE OPA
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Hearst Publications,Inc.78 The National Labor Relations Act (the
Wagner Act) provides that employees have a right to bargain
collectively with their employers. Certain newspaper carriers
sought to bargain collectively with publishers of four Los Angeles
California daily newspapers; the latter refused, asserting the
carriers were independent contractors rather than employees. The
statute gave little guidance as to the meaning of "employee."
Speaking for the Court, Justice Rutledge observed that there
was no simple, uniform, and easily applicable test. 79 He noted that
within a single jurisdiction a person who is held to be an
"independent contractor" for the purpose of imposing vicarious
liability in tort may be an "employee" for the purposes of
particular legislation, such as unemployment compensation.s The
problem was even more difficult when one had to consider a term
used in many states with varying import. What alternatives might
be considered? One approach, he indicated, was to refer the
decision of who are employees to local state law. Surely Congress
did not intend this: "It would introduce variations into the statute's
operation as wide as the differences the forty-eight states and other
local jurisdictions make in applying the distinction for wholly
different purposes." 8 ' A second possibility was to import
wholesale the traditional common law conceptions or "some
distilled essence of their local variations" as exclusively
controlling limitations upon the scope of the statute's
effectiveness. The problem with this alternative was that it "would
be merely to select some of the local, hairline variations for nationwide application." 82 Congress surely intended national uniformity,
so the term "employee" had to be answered "primarily from the
history, terms and purposes of the legislation." Rather than have
the federal courts attempt this, the task had been assigned primarily
to the National Labor Relations Board, the agency created by
Congress to administer the National Labor Relations Act.
Justice Roberts, dissenting, thought that the federal courts
should supply the meaning to the term "employees." 84 This he said
was something the federal courts had long done in similar
circumstances:
78.
79.
80.
81.
82.
83.
84.
322 U.S. 111 (1944).
Id. at 123.
Id. at 122.
Id. at 123.
Id.
Id. at 124.
Id. at 136 (Roberts, J., dissenting).
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LOUISIANA LA W RE VIEW
[Vol. 71
As a result of common law development, many
prescriptions of federal statutes take on meaning which is
uniformly ascribed to them by the federal courts,
irrespective of local variance. . . . [It was to a] common,
general, and prevailing understandin [of "employee"] that
Congress referred in the statute ....
Is the Hearst approach available for interpretation of gross
negligence and willful misconduct under the OPA? To apply
Hearst, it would be necessary for the courts to look to a federal
administrative agency with the authority and expertise to interpret
and develop the statutory term in question. Although the United
States Coast Guard has several roles under the OPA, such as
designating a responsible party or administering Oil Spill Trust
Funds, neither it nor any other agency has a pervasive function
under the OPA comparable to the National Labor Relations
Board's role under the National Labor Relations Act in applying
the term "employee." 86
D. Cluster of Ideas
Because the agency expertise approach of Hearst is not
available, the courts will probably turn to the second methodology
suggested by Justice Rutledge in Hearst, finding a "distilled
essence" of the variations on gross negligence and willful
85. Id.
86. The Coast Guard has, however, defined "gross negligence" and "willful
misconduct":
Gross Negligence. Negligence is a failure to exercise the degree of
care, which a person of ordinary caution and prudence would exercise
under the circumstances. A greater degree of care is required when the
circumstances present a greater apparent risk. Negligence is "gross"
when there is an extreme departure from the care required under the
circumstances or a failure to exercise even slight care.
Willful Misconduct. An act, intentionally done, with knowledge that
the performance will probably result in injury, or done in such a way as
to allow an inference of a reckless disregard of the probable
consequences.
U.S. COAST GuARD, NPFC CLAIMS PROCESS: RESPONSIBLE PARTY CLAIM
SUBMISSION GUIDANCE 4 (2007), available at http://www.uscg.mil/npfc/docs/
PDFs/urg/Ch6/NPFCClaimsProcessRP.pdf.
The National Pollution Funds Center (NPFC) has interpreted and applied the
gross negligence standard of the OPA in one case, and its interpretation was
upheld in Water Quality Insurance Syndicate v. United States, 632 F. Supp. 2d
108 (D. Mass. 2009). The NPFC has interpreted and applied the willful
misconduct standard of the OPA in another case, and its interpretation was
rejected in Water Quality InsuranceSyndicate v. United States, 522 F. Supp. 2d
220 (D.D.C. 2007). Both cases are discussed at length below.
2011]
GROSS NEGLIGENCE AND THE OPA
987
misconduct in common law cases. The Supreme Court has
employed such an approach to common law usage under the rubric
of a "cluster of ideas" interpretive technique. As framed by Justice
Jackson in Morissette v. United States,
where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of
ideas that were attached to each borrowed word in the body
of learning from which it was taken and the meaning its use
will convey to the judicial mind unless otherwise
instructed. In such case, absence of contrary direction may
be taken as satisfaction with widely accepted definitions,
not as a departure from them.87
Morissette interpreted a criminal statute that did not mention
intent, and the Court found that it should not be construed as
eliminating that element from the crimes denounced. The same
approach was followed in the interpretation of "punitive damages"
under the Federal Tort Claims Act. In Molzof v. United States the
court relied on the "cluster of ideas" approach of Morissette to give
meaning to "punitive damages" within the federal statute: "We
agree with petitioner's interpretation of the term 'punitive
damages,' and conclude that the Government's reading of [section]
2674 is contrary to the statutory language. Section 2674 prohibits
awards of 'punitive damages,' not 'damages awards that may have
a punitive effect.' 88 The Court said that there was no warrant for
assuming that Congress was unaware of established tort definitions
when it enacted the Tort Claims Act in 1946.89 At that time
"punitive damages" was already a legal term of art that had a
widely accepted common law meaning.
With the "cluster of ideas" approach in mind, we can identify
certain salient or common features found in cases and statutes
using "gross negligence" and "willful misconduct."
87. Morissette v. United States, 342 U.S. 246, 263 (1952).
88. Molzof v. United States, 502 U.S. 301, 306 (1992). For an opinion
dealing with the language of the OPA and looking to the "cluster of ideas"
approach of Molzof and Morissette, see Boca Ciega Hotel, Inc. v. Bouchard
Transportation Co., 51 F.3d 235, 240 (11th Cir. 1995). Cf Carter v. United
States, 530 U.S. 255, 264 (2000) (observing that the canon on imputing common
law meaning applies only when Congress makes use of a statutory term with
established meaning at common law); see also Nat'l Treasury Emps. Union v.
Chertoff, 452 F.3d 839 (D.C. Cir. 2006).
89. Molzof 502 U.S. at 307-08.
988
LOUISIANA LAW REVIEW
IV. THE USAGES
OF
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WILLFUL
MISCONDUCT
A general treatment of gross negligence and willful misconduct
in tort law will look to the usages of these terms that long preceded
the enactment of the OPA. As suggested, Congress will be
presumed to have such usages in the minds of its members when
they have spoken collectively as an organ of law. A distinction
between gross negligence and willful misconduct can be made in a
general way by a specific illustration, while recognizing that the
two will overlap or merge at their margins. With the appropriate
perspective, they become indistinguishable.
Under the "Rule of Capture," a principle of oil and gas law
found in all producing states, a landowner or mineral interest
owner is allowed to produce oil and gas from under his or her
property even if this drains oil or gas from the property of a
neighbor.
However, the owner may not negligently or intentionally harm
a neighbor's right likewise to produce. Production for one's own
beneficial use is not "misconduct" under this rule. A well blowout
resulting from an operator's inadequate drilling mud is the result of
negligence (or perhaps gross negligence), and the operator will be
liable to the neighbor to the extent of the injury. The injury in such
an instance has occurred while the operator was doing something it
had a right to do but performed negligently. 90
Suppose that the operator of the well has no market for his oil
or natural gas and to spite his neighbor opens up valves on his own
well to discharge the oil or natural gas uselessly. This is not an
example of negligence but of willful misconduct. 9 1 For this, the
operator will be subject to an injunction and/or liable in tort.
As indicated in the previous paragraph, a distinction can be
made ordinarily between gross negligence and willful misconduct,
but that does not mean that Congress intended a distinction be
made between the two for most purposes. 92 By specifying both,
90. Elliff v. Texon Drilling Co., 210 S.W.2d 558 (Tex. 1948).
91. See Higgins Oil & Fuel Co. v. Guaranty Oil Co., 82 So. 206 (La. 1919),
in which a landowner left a well uncapped to decrease the pumping efficiency of
his neighbor's well. See also Louisville Gas Co. v. Ky. Heating Co., 77 S.W.
368 (Ky. 1903) (enjoining the operation of a lampblack factory on the ground
that it was operated only to waste the gas and thus destroy the plaintiff).
92. The OPA in one provision, section 2716(f), does treat willful
misconduct differently from gross negligence for purposes of the liability of a
guarantor of a responsible party. The one case that has arisen under this
provision illustrates vividly how gross negligence and willful misconduct melt
into one another. See infra notes 225-32 and accompanying text (discussion of
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GROSS NEGLIGENCE AND THE OPA
989
Congress has indicated perhaps that no distinction need be made as
either gross negligence or willful misconduct can be the basis for
the loss of limitation on liability. Indeed, Congress in CERCLA
has run the two together in providing that for the purpose therein,
"reckless, willful, or wanton misconduct shall constitute gross
negligence." 93 It is very common in the gross negligence cases to
equate gross negligence with willful misconduct, though some
courts would say this confuses two distinct concepts.
The transition of an act from a negligent act to an instance of
gross negligence that should be treated in the same way an
intentional act is treated occurs when the negligent act is
accompanied with or followed by a state of awareness of the injury
that may flow as a consequence of the act, especially a
continuation of a course of conduct. The negligence of the actor
becomes willful misconduct because the actor has willfully and
knowingly chosen to act in a manner he knows may bring harm to
others. It is this state of mind and element of choice that separates
gross negligence from ordinary negligence. Just as Congress in
CERCLA has identified "gross negligence" with "reckless, willful,
or wanton misconduct," so, too, have courts and commentators
made the same linkage. The Louisiana Civil Law Treatise
identifies "gross fault" in nearly identical terms:
Elaborating on the meaning of the words willful, wanton,
and reckless, Louisiana courts have stated that these terms
apply to conduct that is still merely negligent, rather than
intended to harm, but which stems from a state of mind so
far from the proper one that it is treated in many respects as
if harm were intended, in that it usually is accompanied by
a conscious indifference to consequences, amounting
almost to a willingness that harm should follow. 94
The facts of Elliff v. Texon Drilling Co. could be varied in a
hypothetical case to raise the action to one of gross negligence. 95 in
Elliff the jury found that respondents were negligent in failing to
use drilling mud of sufficient weight in drilling their well and that
such negligence was the proximate cause of the well blowout.
Nothing in the case suggests that the drilling company was aware
Water Quality Ins. Syndicate v. United States, 522 F. Supp. 2d 220 (D.D.C.
2007)).
93. 42 U.S.C. § 9607(d)(2) (2006).
94. SAUL LITvINoFF, OBLIGATIONS § 11.12, in 6 LOUISIANA CIVIL LAW
TREATISE (Westlaw through 2010-2011 update).
95. 210 S.W.2d 558 (Tex. 1948).
990
LOUISIANA LAW REVIEW
[Vol. 71
of the insufficient weight of the drilling mud. However, had the
company been conscious of the insufficiency and proceeded
nevertheless, this probably would have supplied the element of
awareness necessary for gross negligence. Thus one case involving
damage from a bad well completion or blowout may involve only
ordinary negligence, 9 6 while another may rise to the level of gross
fault or gross negligence upon a proper showing of facts.9 7
A. Function of "Gross Negligence"
When we describe "gross negligence" or "willful misconduct"
as an operative of a formula, we are stating its function. As the
British philosopher Gilbert Ryle once wrote, "[T]o know what an
expression means is to know how it may and may not be
employed."98 The use of "gross negligence" as an operative
developed in two formulae of tort law and in grants or recognitions
of immunity from tort liability both in statute and in common law.
Similar functions for an equivalent concept are found in Roman
law and civil law in the doctrine of culpa lata dolo aequiparaturthat gross negligence is equal to fraud or intentional
signifying
tort.9
Does consequence follow operative or does operative follow
consequence? Characterizing conduct of a party as constituting
"gross negligence" is to serve a function: it is to control or to
justify the imposition of liability of a certain sort. Judges or juries
who believe that tort law should be punitive or that the rule of
"comparative negligence" comports more closely with natural
justice than the doctrine of "contributory negligence" are likely to
96. See Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters
Subscribing to Cover Note 95-3317(A), 837 So. 2d 11 (La. Ct. App. 2002). In
the case, Cliffs' pulling drill pipe out too quickly caused a well to blow out; the
loss of hydrocarbons and/or damage to a reservoir arose from the simple
negligence of Cliffs in causing the well blowout and failing to properly control
same. There was no factually supportable allegation that this negligence rose to
the level of gross negligence.
97. See Sevarg Co. v. Energy Drilling Co., 591 So. 2d 1278 (La. Ct. App.
1991) (alleged failure to comply with the mud control program specified in the
contract); Apache Corp. v. Moore, 891 S.W.2d 671 (Tex. App. 1994), vacated,
517 U.S. 1217 (1996).
98. Gilbert Ryle, The Theory of Meaning, in BRITISH PHILOSOPHY IN THE
MID-CENTURY 239, 255 (C.A. Mace ed., 1957).
99. "The Roman law recognized at least two grades of [culpa], namely
culpa lata, corresponding in a general sense to the term 'gross negligence' of the
Anglo-American law, and culpa levis, which consisted in the absence of such
conduct or care as is observed by a good father of a family . . . ." Charles
Sumner Lobinger, Culpa, in 17 CoRPus JuRIs 393, 393 (1919) (footnotes
omitted).
2011]
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find more readily that the actions of a defendant should be
characterized as "gross negligence" or "willful misconduct" in
order to justify a departure from the default rule. They will be
reluctant to separate the category determination from the
consequence no matter how hard an earlier court or a legislature
has tried to confine the scope of these terms by a verbal formula.
The concept of "gross negligence" developed as a means of
imposing more severe consequences for a party causing injury than
would ensue from tort rules applicable to "negligence." The
concept of "gross negligence" carries with it, then, a judgment that
the conduct of the injury-causing party is more blameworthy than
"negligence" itself would suggest. Here it is useful to consider the
Aristotelian notions of virtue and justice. For Aristotle, virtue and
justice necessarily involve choice rather than merely looking to the
consequences of a person's actions:
Of voluntary acts we do some by choice, others not by
choice; by choice those which we do after deliberation, not
by choice those which we do without previous deliberation.
Thus there are three kinds of injury in transactions between
man and man; those done in ignorance are mistakes when
the person acted on, the act, the instrument, or the end that
will be attained is other than the agent supposed; the agent
thought either that he was not hitting any one or that he was
not hitting with this missile or not hitting this person or to
this end, but a result followed other than that which he
thought likely (e.g.[,] he threw not with intent to wound but
only to prick), or the person hit or the missile was other
than he supposed. Now when (1) the injury takes place
contrary to reasonable expectation, it is a misadventure.
When (2) it is not contrary to reasonable expectation, but
does not imply vice, it is a mistake (for a man makes a
mistake when the fault originates in him, but is the victim
of accident when the origin lies outside him). When (3) he
acts with knowledge but not after deliberation, it is an act
of injustice--e.g.[,] the acts due to anger or to other
passions necessary or natural to man; for when men do
such harmful and mistaken acts they act unjustly, and the
acts are acts of injustice, but this does not imply that the
doers are unjust or wicked; for the injury is not due to vice.
But when (4) a man acts from choice, he is an unjust man
and a vicious man.
100.
ARISTOTLE,
supra note 62, at 107.
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Injury-producing actions that are made with knowledge of risk
of injury to others and with choice of the risk are more
blameworthy than mere mistakes. That element of choice is
important for another reason: attaching more severe consequences
to injury-causing conduct can serve as a deterrent to behavior when
behavior involves choice and a weighing of consequences. Hence
the application of "gross negligence" as an operative in a tort
formula has generally involved conduct that reflects choice or
conscious decisionmaking by a defendant. As an example outside
of the "gross negligence" realm, among the factors to be
considered in awarding punitive damages in Alabama law are the
degree of reprehensibility of the defendant's conduct, the
defendant's awareness, and whether the wrongful conduct was
profitable to the defendant.' 0 ' An exhaustive study of the meaning
of "gross negligence" in 1927 observed:
[T]he whole basis both of our own law of negligence and
the Roman theory of culpa finds its origin essentially in an
idea of morals. What we have come to regard as one of the
leading principles of tort liability is worked out in a period
when "equity," "good faith" and "good conscience" are the
battle cries; when under the natural law influence, men's
conduct is measured by viewing it as attaining or failing to
attain the idea-the natural standard.102
By choosing to attach consequences for actions that are
determined to be gross negligence and willful misconduct,
Congress has invoked standards that require moral judgment about
conduct.
B. Gross Negligence and Punitive Damages
One of the occasions for characterizing conduct as "gross
negligence or willful misconduct" is the application of punitive
damages to injury-causing conduct that a judge or jury believes is
deserving of punishment beyond compensatory redress of injury.
The theory behind punitive damages is that conduct of a party can
affect both the private and public interest; punitive or exemplary
damages will deter such future conduct. The United States
Supreme Court noted that "the consensus today is that punitives
101. Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala. 1989). Green
(and specifically these three factors) were cited favorably by the Supreme Court
in upholding a punitive damage award in the Exxon Valdez negligent oil spill in
Exxon Shipping Co. v. Baker, 554 U.S. 471, 503 (2008).
102. Wright, supra note 51, at 187.
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GROSS NEGLIGENCE AND THE OPA
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are aimed not at compensation but principally at retribution and
deterring harmful conduct." 03
As long ago as 1847 this rationale was put forth in a treatise by
Theodore Sedgwick (1811-1859) on damages in which "gross
negligence" was among the types of conduct calling for punitive
damages:
Thus far we have been speaking of the great class of cases
where no question of fraud, malice, gross negligence, or
oppression intervenes. Where either of these mingle in the
controversy, the law instead of adhering to the system or
even the language of compensation, adopts a wholly
different rule. It permits the jury to give what it terms
punitory, vindictive, or exemplary damages; in other words,
blends together the interest of society and of the aggrieved
individual, and gives damages not only to recompense the
sufferer, but to punish the offender.104
The basic formula for tort liability is, "If A has injured B
through [operative] then A is liable to B for [consequence]." When
the consequence to ensue is either compensatory damages or
punitive damages, the formulae are expressed thusly:
If A has injured B through X [negligence] then A is liable
to B for #1 [compensatory damages];
however,
if A has injured B through Y [gross negligence] then A is
also liable to B for #2 [punitive damages].
The consequence follows the determination of the operative,
just as the operative will follow a determination of the
consequence. That is, in the application of either of the two
formulae, deciding one side or the other is enough because one
presupposes the other. As put by J.L. Austin, the statement "'All
Jack's children are bald' presupposes that Jack has some children.
We cannot say 'All Jack's children are bald but Jack has no
children."" 0 5 One could hardly say with fidelity to the formula, "I
find that punitive damages should be awarded in this case and that
defendant was not grossly negligent."
The states are divided about the availability of punitive
damages for injuries resulting from "gross negligence." A few
103.
Baker, 554 U.S. at 492.
104.
THEODORE SEDGWICK, A TREATISE ON THE MEASURE OF DAMAGES
38-
39 (1847).
105. J.L. Austin, Lecture IV, in How TO Do THINGS WITH WORDS 39, 48
(J.O. Urmson & Marina Sbish eds., 2d ed. 1975).
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states do not allow punitive damages for tort in almost all cases.106
Many states do not allow punitive damages to be awarded for
simple or ordinary negligence.'0 o However, a majority of states
allows an award of punitive damages upon a finding of negligence
beyond ordinary neglignce or for negligence that is tantamount to
an intentional wrong. 8 A standard treatise on tort law observes
that "[s]omething more than the mere commission of a tort is
always required for punitive damages."10 9 Prosser and Keeton
goes on to note that:
There is general agreement that . .. mere negligence is not
enough, even though it is so extreme in degree as to be
characterized as "gross," a term of ill-defined content,
which occasionally, in a few jurisdictions, has been
stretched to include the element of conscious indifference
to consequences, and so to justify punitive damages. Still
less, of course, can such damages be charged against one
who acts under an innocent mistake in engaging in conduct
that nevertheless constitutes a tort.
Typical of the torts for which such damages may be
awarded are assault and battery, libel and slander, deceit,
seduction, alienation of affections, malicious prosecution,
and intentional interferences with property such as trespass,
private nuisance, and conversion. But it is not so much the
particular tort committed as the defendant's motives and
conduct in committing it which will be important as the
basis of the award." 0
The Restatement (Second) of Torts approves of the award of
punitive damages. Section 908 states in part: "Punitive damages
may be awarded for conduct that is outrageous, because of the
defendant's evil motive or his reckless indifference to the rights of
others."111 Reporter's note (b) to this section states: "Gross
negligence, in the sense merely of an extreme departure from
106. Baker, 554 U.S. at 495 (listing Louisiana, Massachusetts, Nebraska, and
Washington as having rejected the doctrine of punitive damages); 1 LINDA L.
SCHLUETER, PUNITIVE DAMAGES 31 (6th ed. 2010) (same). Statutes in Louisiana
have occasionally provided for specific instances of punitive damages in tort.
See LA. CIV. CODE ANN. art. 2315.3 (2010); id. art. 2315.4.
107. 1 SCHLUETER, supranote 106, at 634-35 (listing 25 states as included in
this description).
108. Id. at 635.
109. KEETON ET AL., supra note 6, § 2, at 9.
110. Id. at 10-11.
S11. RESTATEMENT (SECOND) OF TORTS § 908 (1979).
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ordinary care, is not enough [to support punitive damages]."ll 2
Nevertheless, a significant number of states have allowed the
award of punitive damages when the negligence can be
characterized as "gross negligence."" 3 It is apparent from the
language employed by the courts that many judges have believed
that there is a point at which the degree of culpability of negligent
or careless conduct becomes so great that it is the equivalent of
intentional conduct that causes injury and accordingly should
create the same liability as would intentional conduct.
The Seventh Circuit in a 1905 case speculated that the concept
of "gross negligence" was created to justify the use of punitive
damages in negligence cases. 114 In Kelly v. Malott, Judge Brown
suggested that the adjective "gross" was attached to negligence to
convert negligence into the equivalent of a "willful" tort; but this
was, then, he said, an oxymoron:
The division of negligence into slight, ordinary, and gross
may have originated in an endeavor, unconscious, perhaps,
to justify exemplary damages where only compensative
should be allowed. One who unintentionally fails in his duty,
and thereby causes an injury, should make complete
compensation. But to warrant punishment, there must be
actual or constructive intent to inflict the injury. Negligence
and willfulness are as unmixable as oil and water. "Willful
negligence" is as self-contradictory as "guilty innocence."115
He added, "The substantive remains the same substantive,
whatever the adjective."' 1 6 The Seventh Circuit was saying that
courts were using "gross negligence" to award punitive damages
when, under a proper application of tort law, they should not.
Judge Butzner of the Fourth Circuit reflected on the selfcontradiction of the term "willful negligence" (Judge Brown's very
point) in the FWPCA in an oil spill cleanup in which the defendant
sought the protection of the immunity provisions of the
He commented: "Although the term 'willful
FWPCA.'1
negligence' has been called a self-contradiction, it has a recognized
meaning. The term refers to reckless disregardfor the probable
112. Id. reporter's note (b).
113. The cases are collected and discussed in Annotation, Test or Criterion
of Gross Negligence or Other Misconduct That Will Support Recovery of
Exemplary Damages for Bodily Injury or Death Unintentionally Inflicted, 98
A.L.R. 267 (1935).
114. Kelly v. Malott, 135 F. 74 (7th Cir. 1905).
115. Id. at 76.
116. Id.
117. Steuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609 (4th Cir. 1979).
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consequences of a voluntary act or omission."'1 8 Judge Butzner's
definition of "willful negligence" under the FWPCA is identical to
the definition given for "gross negligence" in many cases. The
court ruled that the United States was not entitled to recover its full
recovery costs on the ground that the owner of the barge was guilty
of willful negligence.
The difference in view between the courts that will award
punitive damages for gross negligence and those that will not is
that the former find an "intentional tort" in the intent to do a risky
act while the latter require the intent to be to cause the injury. This
becomes apparent in examples from several states of the criteria
for gross negligence to justify punitive damages. They indicate that
the moral culpability arises from a subjective consciousness of the
risk involved in the tortious conduct. In Mobil Oil Corp. v.
Ellender-a Texas case in which surviving family members and
the administrator of the estate of a contractor who died of leukemia
brought an action against a chemical company, alleging that
exposure to benzene at the company's facility caused the
contractor's death-the court upheld an award of punitive damages
on a finding of gross negligence." 9 The court defined "gross
negligence" as follows:
Gross negligence includes two elements: (1) viewed
objectively from the actor's standpoint, the act or omission
must involve an extreme degree of risk, considering the
probability and magnitude of the potential harm to others,
and (2) the actor must have actual, subjective awareness of
the risk involved, but nevertheless proceed in conscious
indifference to the rights, safety, or welfare of others.
Evidence of simple negligence is not enough to prove
either the objective or subjective elements of gross
negligence. Under the first element, "extreme risk" is not a
remote possibility of injury or even a high probability of
minor harm, but rather the likelihood of serious injury to
the plaintiff. Under the second element, actual awareness
means that the defendant knew about the peril but its acts
or omissions demonstrated that it did not care.
Similarly, in Bennett v. Reynolds, a case involving sale of cattle
that the seller should have known belonged to another, the court
ruled that the "actual awareness" requirement of the subjective
element of gross negligence, in connection with a punitive
118. Id. at 614 (emphasis added).
119. 968 S.W.2d 917, 921 (Tex. 1998).
120. Id. (citations omitted).
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GROSS NEGLIGENCE AND THE OPA
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damages award, means that the defendant knew about the risk, but
the defendant's acts or omissions demonstrated that it did not
care.121 In another case arising in Texas, Barber v. Texaco, Inc.,
the Fifth Circuit said that "[g]ross negligence is differentiated from
simple negligence by the mental attitude of the defendant: a
plaintiff must show that the defendant knew about the daer, but
demonstrated by his acts or omissions that he didn't care.
Gross negligence can be found in a series of acts. A Texas oil
well blowout case illustrates how negligence is transformed into
gross neglience by the taking of actions while the actor is aware
In Apache Corp. v. Moore, during the drilling of a
of the risk.
well, a company found metal shavings in the drilling mud.12 Such
shavings are often indicative of worn out casings or tubing
allowing the metal of the drilling pipe to rub and shave off, thereby
weakening the equipment in the hole. The company ran no logs or
tests to determine the origin or cause of the shavings.125 Later the
well experienced a "kick"; the well began to flow, causing cement,
which had been placed to secure the liner at the bottom of the hole,
to back uV through the hole into the intermediate casing, where it
hardened. 2 The cement was drilled out of the casing, but no tests
were conducted to determine whether the casing had been
damaged.127 Thereafter the well was completed, and a pressure
leak occurred at the surface, denoting pressure on the backside of
the well, which placed the intermediate casing under stress.128 The
drilling superintendent recommended pulling the tubing and
repairing the leak, but the company conducted a single test to
determine the source of the leak and did not find it.129 To relieve
pressure on the well due to the leak, the company installed a casing
relief valve on the well.130 The valve depended on a flow of
nitrogen to function.' 3 ' The valve failed to function, and the well
blew out.' 32 Based on this series of events, the court upheld a
finding of gross negligence that supported the award of punitive
121. 242 S.W.3d 866 (Tex. Ct. App. 2007), rev'd, 315 S.W.3d 867 (Tex.
2010).
122. 720 F.2d 381, 384 (5th Cir. 1983).
123. Apache Corp. v. Moore, 891 S.W.2d 671 (Tex. Ct. App. 1994), vacated,
517 U.S. 1217 (1996).
124. Id.
125. Id. at 674.
126. Id.
127. Id.
128. Id.
129. Id.
130. Id. at 675.
131. Id.
132. Id.
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damages. Rejecting the defendant's plea that the blowout was the
result of ordinary negligence, the court said: "Ordinary negligence
is raised to the level of gross negligence by the mental attitude, i.e.,
the conscious indifference, of the defendant to the rights, welfare
and safety of others. The distinguishing factor between negligence
and gross negligence is the degree of risk of which the defendant
was, or should have been, aware."' 33 It continued:
Apache management decided not to run logs or tests to
determine whether the casings had been worn or damaged
by the drilling out of cement following the kick. Apache
knew the Key 1-11 well had a leak and, despite contrary
recommendations, decided to shut in the well without
fixing the leak. Apache had actual knowledge that the relief
valve needed a steady flow of nitrogen to operate properly
and prevent the blowout; yet, Apache did not adequately
monitor the flow to the system. Moreover, Apache put
Clower in charge of the well despite knowledge of his
alcohol abuse and other problems related to kickbacks, and
allowed the kickback scheme to continue despite knowing,
by its own admission, that such activities affected the
quality of its employees' work. This evinces that Apache
consciously disregarded the risks associated with the kick
and the ensuing leak, circumstances which it knew were
capable of causing a blowout.
The existence of gross negligence need not rest upon a
single act or omission, but may result from a combination
of negligent acts or omissions, and many circumstances and
elements may be considered in determining whether an act
constitutes gross negligence.1 34
In North Carolina, a punitive damages award similarly must be
based on the defendant's subjective awareness of the risk. In a
wrongful death case against the driver involved in the accident, the
following trial court jury instruction was upheld as properly stating
state law on gross negligence:
In a case of alleged negligence, punitive damages may be
awarded upon the showing that the negligence was gross,
willful or wanton. Negligence is gross, willful or wanton
when the wrongdoer acts with a conscious and intentional
133. Id. at 681 (citations omitted).
134. Id. at 682; see also Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.
1981); Granite Constr. Co. v. Mendoza, 816 S.W.2d 756 (Tex. Ct. App. 1991).
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GROSS NEGLIGENCE AND THE OPA
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disregard of and indifference to the rights and safety of
others.135
Some courts have indicated that "gross negligence" is
confusing and a misnomer as the term insufficiently indicates the
notion of intent. This is seen in the Wisconsin case of Rideout v.
Winnebago Traction Co.1 36 In Rideout, the driver of an electric
street railway in Oshkosh ran into marchers in a parade of the
Milwaukee Uniformed Rank Knights of Pythias, killing one of
them.137 The trial court submitted the cause to the jury for specific
findings covering the subject of liability for ordinary negligence,
and for gross negligence as well. 3 8 Wisconsin did not follow the
doctrine of comparative negligence, and the court reversed the
judgment for the defendant because the trial court had not
sufficiently appreciated "the broad distinction between ordinary
negligence and intentional wrongdoing, the former being
characterized by inadvertence and the latter by advertence, the one
requiring intent, actual or constructive to injure, and the other
being inconsistent therewith."l39 In part quoting another Wisconsin
opinion, the court said that "gross negligence" is equivalent to
intentional wrongdoing:
It is obvious that no degree of mere carelessness or
inadvertence, however remote from the care customarily
used either by the ordinary careful man or by the
exceptionally careless one, constitutes gross negligence.
The latter suggests necessarily intent, either actual or
constructive, to cause injury, or conduct evincing a total
disregard for the safety of persons or property.140
The court further stated: "It were better if the term 'gross
negligence' as suggesting inadvertence had never been used in
speaking of a wrong, having the element of intent, actual or
constructive, to injure."14 1 The court said there was evidence to
support a verdict based on intent by the defendant's motorman: "A
jury might well find under such circumstances conscious disregard
of human life, rendering the wrongdoer in case of a destruction
135. Berrier v. Thrift, 420 S.E.2d 206, 208 (N.C. Ct. App. 1992).
136. 101 N.W. 672 (Wis. 1904).
137. Id. at 673.
138. Id.
139. Id. at 674.
140. Id (internal quotation marks omitted).
141. Id.
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0LOUISIANA LAW REVIEW
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thereof guilty of manslaughter in a criminal action, and of willful
misconduct in a civil action." 42
In some other states, even a finding of gross negligence will be
insufficient to support punitive damages. To justify punitive
damages, the actions must be characterized as willful or wanton
misconduct. For example, Virginia employs a stringent punitive
damages standard such that gross negligence will not justify
punitive damages. In Philip Morris, Inc. v. Emerson, the Virginia
Supreme Court reversed a punitive damages award, holding that
Texaco was not liable for punitive damages for burying
pentaborane gas (more lethal than cyanide) and refusing to tell
Philip Morris the contents of unlabelled corroded gas tanks once
they were uncovered.143
The evidence is sufficient to prove something more than
ordinary negligence and, perhaps, gross negligence, on the
part of Texaco and Philip Morris. Yet, we hold, as a matter
of law, that the evidence fails to prove that their acts and
omissions constitute willful and wanton negligence as we
have defined and applied that term. 144
The court, however, upheld an award of punitive damages against
the chemical disposal company hired to remove and test the waste,
the president of which died from inhaling the gas.145 The president
knew of the immediate and grave danger and released the gas into
the air without making his staff wear protective inhalers. 146
The U.S. Supreme Court, as seen in Exxon v. Baker, has not
only approved the application of punitive damages under state law
for torts involving gross negligence but has itself awarded (more
strictly, approved of a lower federal court awarding) punitive
damages for reckless conduct.' 47 Exxon had stipulated to its
negligence in the Exxon Valdez oil spill but challenged an award
by the jury of punitive damages in the amount of $5 billion. The
first phase of the trial led to a finding that Exxon was "reckless"
and that its recklessness was "a legal cause of the grounding of the
Exxon Valdez.""'8 This was the basis for the award of punitive
damages. The term "reckless" is found in many specifications of
the elements of both gross negligence and willful misconduct. In
Baker, the Supreme Court said of Exxon's wrongdoing that "the
142. Id. at 676.
143. 368 S.E.2d 268 (Va. 1988).
144. Id. at 284.
145. Id. at 279.
146. Id
147. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 515 (2008).
148. In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001).
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GROSS NEGLIGENCE AND THE OPA
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tortious action was worse than negligent but less than malicious"
and noted that it was "a case of reckless action, profitless to the
tortfeasor."l 49 Prior cases in which the Supreme Court had taken
up punitive damages involved the review of state awards of
punitive or exemplary damages that had been challenged on due
process grounds. But in Baker, the review considered not the
intersection between the Constitution and punitive damages under
due process but the desirability of regulating them as a common
law remedy for which responsibility lies with the Court as a source
of judge-made law in the absence of a statute.1 50 The Court's role
in the award of punitive damages, then, was on the same basis that
common law state courts had historically awarded punitive
damages for gross negligence or willful misconduct. 51 The
elements looked to by the Court in Baker will surely be relevant to
any court giving content to the meaning of "gross negligence or
willful misconduct" in the OPA. The Court made reference to
several states as supplying these elements:
Maryland, for example, has set forth a nonexclusive list of
nine review factors under state common law that include
"degree of heinousness," "the deterrence value of [the
award]," and "[w]hether [the punitive award] bears a
reasonable relationship to the compensatory damages
awarded." Alabama has seven general criteria, such as
"actual or likely harm [from the defendant's conduct],"
"degree of reprehensibility," and "fi]f the wrongful conduct
was profitable to the defendant."
Similarly, the Supreme Court in an earlier case where it had
engaged in due process review of a state award, had said: "Perhaps
the most important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the defendant's
149. Id. at 510-11. In a footnote, the Court said, "We thus treat this case
categorically as one of recklessness, for that was the jury's finding. But by
making a point of its contrast with cases falling within categories of even greater
fault we do not mean to suggest that Exxon's and Hazelwood's failings were
less than reprehensible." Id. at 510 n.23. The Court implicitly treated
"recklessness" as intermediate between "avarice" and "gross negligence" when
it stated: "These studies cover cases of the most as well as the least blameworthy
conduct triggering punitive liability, from malice and avarice, down to
recklessness, and even gross negligence in some jurisdictions." Id. at 512. It did
so in indicating that any of these would support punitive damages.
150. Id. at 501-03.
151. Id. at 492.
152. Id. at 503 (alterations in original) (citations omitted) (quoting Green Oil
Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala. 1989); Bowden v. Caldor, Inc.,
710 A.2d 267, 277-84 (Md. 1998)).
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1LOUISIANA LAW REVIEW
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conduct."' 5 3 Such factors appear to show concern for the state of
mind or intent of the defendant and to pass judgment on the
"heinousness" of the act or the "degree of reprehensibility" in the
choice of conduct made by the defendant.
In the OPA, Congress has chosen to punish "gross negligence"
and "willful misconduct" in the form of treble penalties in section
1321 of the FWPCA and has also attached an essentially punitive
consequence to such conduct in section 2704 by taking away an
immunity in specified circumstances.' 5 4
C. Gross Negligence and the Doctrineof ContributoryNegligence
A second function of "gross negligence" in tort law was
developed by the courts to overcome another formula (or rule) of
tort law, the doctrine of contributory negligence. This rule or
doctrine is expressed in the following formula:
Rule #1 - If A has injured B through X [negligence] and if B's
injury is partially due to B's own X [negligence], then
consequence #1 [A is not liable to B for damages].
As brought out earlier, the concept of tort law involves both
actor and injured. If both the actor and the injured share
responsibility for the injury, then both are to blame for the injury;
hence, the reasoning would go, no liability of defendant to
plaintiff, as one cannot recover for a tort by himself against
himself.
Courts dissatisfied with the "contributory negligence" rule they
have inherited can do one of several things. They can abolish
"contributory negligence" and say henceforth they will follow a
rule of "comparative negligence." This is a radical step, for it
makes clear that a court is effectively a legislature rather than an
organ of natural justice. A milder approach is to adhere ostensibly
to the "contributory negligence" rule by saying there is a second
formula with a different operative and consequence:
Rule #2 - If A has injured B through Y [gross negligence] and
if B's injury is partially due to B's own X [negligence], then
consequence #2 [A is liable to B for damages].
Thus formulated, a court can say that both rules can exist
without contradiction. For most cases, Rule #1 will apply, but for
blameworthy negligence, Rule #2 can be invoked.
153.
154.
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).
33 U.S.C. § 1321(b)(7)(A)-(D) (2006); id § 2704(c).
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GROSS NEGLIGENCE AND THE OPA
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An early example of this strategy is seen in Galena & C.UR.
Co. v. Jacobs, which moves to a comparative negligence approach
by referring to gross negligence: "[I]n this, as in all like cases, the
degrees of negligence must be measured and considered, and
wherever it shall appear that the plaintiffs negligence is
comparatively slight, and that of the defendant gross, he shall not
be deprived of his action." 5 5 Noting that "the strict doctrine of
contributory negligence is much criticized," a 1928 law review
comment observed that "[t]o the doctrine of contributory
negligence, there have arisen several limitations or exceptions. The
two now quite generally recognized are the so-called last clear
chance doctrine and the rule that contributory negligence on the
part of the plaintiff is no defense if the defendant's negligence was
willful or wanton." 5 6
This strategy of saying in effect that there is a rule and then an
exception that incorporates another rule is an example of the
recursive nature of legal rules. That is, linguists recognize that
statements can be infinitely expanded by addition of clause upon
clause to a sentence with conjunctions and disjunctions; thus a
basic rule such as "contributory negligence" may be stated with an
exception for "gross negligence," followed by an exception for
"willful misconduct" or "gross negligence" on the part of the
plaintiff, and so forth. The very long formula then can appear to be
a single rule rather than a series of separate rules.
The mind can conceive of the matter in a different way when it
is reluctant to accept the vagueness of defining "gross negligence"
so as to compare the negligence of the plaintiff with that of the
defendant. The gross negligence exception to the rule of
contributory negligence is really a matter of dividing the accident
or event into two stages or discrete events. If both parties are
concurrently negligent, then the plaintiff's negligence
(contributory negligence) bars recovery. But if the plaintiffs
negligence precedes the action of the defendant and the defendant
is aware of the plaintiffs negligence, then the defendant is
independently negligent for not taking appropriate account of the
plaintiffs situation. The plaintiffs negligence, then, is not a
"cause" of the injury. Thus defendant's negligence need not be
characterized as "gross" at all. The "gross negligence" rule can
then be called "discovered negligence, subsequent negligence,
wanton or willful or reckless negligence, discovered peril, the last
155. 20 Ill. 478, 497 (1858).
156. Comment, Negligence: Exceptions to the Rule That Contributory
Negligence Is a Defense: Gross Negligence, 17 CALIF. L. REv. 65, 66 (1928).
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clear chance doctrine, and the humanitarian rule."' 5 7 This was the
characterization or conceptualization of the Michigan Supreme
Court in Gibbard v. Cursan.'5 8 The court analyzed the "gross
negligence" rule as follows, thus turning the question from
comparison of relative fault to a question of causation:
The theory of gross negligence is that the antecedent
negligence of plaintiff only put him in a position of danger,
and was therefore only the remote cause of the injury,
while the subsequently intervening negligence of the
defendant was the proximate cause.
. .
. If the negligence of
a plaintiff is concurrent with the negligence of a defendant,
the rule as to antecedent negligence of plaintiff and
subsequent negligence of defendant does not apply.' 59
With this analytical strategy, the court was able to reaffirm that the
rule of comparative negligence did not obtain in Michigan.16 0
Even those judges and juries who believe that the contributory
negligence rule is unfair (for failing to account for the greater
moral culpability of one negligent party over another) and should
be superseded by a gross negligence exception or a last clear
chance approach might conclude that if the plaintiff and the
defendant are both guilty of gross negligence (i.e., of equal moral
fault or reprehensible conduct), the recovery should be barred to
the plaintiff. We can call this the "gross contributory negligence
rule."
157. Gibbard v. Cursan, 196 N.W. 398, 401 (Mich. 1923).
158. Id.
159. Id.
160. Gibbard is given the following gloss in Burnett v. City of Adrian,
involving a recreational use statute that brings out the state-of-awareness focus
of Gibbard:
[T]he rule of the case is that willful and wanton misconduct is made out
only if the conduct alleged shows an intent to harm or, if not that, such
indifference to whether harm will result as to be the equivalent of a
willingness that it does. Willful and wanton misconduct is not, as the
Gibbard Court observed, a high degree of carelessness. The poorly
phrased three-prong test for willful and wanton misconduct in Gibbard
is cast entirely in language of ordinary negligence until, in the third
element, it is said that it must be shown that an injury "is likely." It is in
that concept-the notion that in the circumstances of a given case the
injury is probable, or to be expected, or likely-that is found the
requisite indifference to harm tantamount to a willingness that it occur,
if not a specific intent that it does, which distinguishes willful and
wanton misconduct from ordinary negligence.
326 N.W.2d 810, 812 (Mich. 1982).
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Rule #3 - If A has injured B through Y [gross negligence] and
if B's injury is partially due to B's own Y [gross negligence],
then consequence #1 [A is not liable to B for damages].
Examples of this exception to an exception can readily be
found in case law, and the OPA itself incorporates the concept. For
example, there is the faux-snake case of Grffin v. Shively. r The
plaintiff-adminstratrix sued for the wrongful death of Albert
Clinton Sutherland, who was shot to death by defendant Garland
Shively. The latter was the operator of a restaurant, and he was
deathly afraid of snakes. Pale and fearful on the fateful day in
question, he informed a fellow employee that he had just seen
some snakes in the well house. Sutherland was aware of Shively's
fear of snakes and teasingly threatened to "put snakes on" Shively.
Sutherland continued to taunt Shively later in the day, returning to
the restaurant and throwing a snake-like belt around the
defendant's neck. Knowing that Shively had a gun and had
threatened to use it, Sutherland would not stop his snake antics.
Sutherland flung the door open and threw a long, black object into
the restaurant toward Shively. 162 Believing the object was a snake,
Shively shot at it (in reality another belt), but the shot killed
Sutherland.
Was Shively grossly negligent or willfully and wantonly
negligent in shooting at a belt posing as a snake but thereby killing
the plaintiffs decedent? Such negligence would ordinarily
overcome the contributory negligence of the plaintiff under
Virginia law. But here was not the plaintiffs decedent also grossly
negligent or guilty of willful misconduct in repeatedly teasing and
taunting a man he knew to be fearful of snakes? The court
announced what has been described above as Rules 2 and 3, while
merging with them the concept of "proximate cause":
[Rule #2] The plaintiff correctly states the general rule that
a defendant who is guilty of willful and wanton negligence
cannot rely upon contributory negligence as a defense....
[Rule #3] However, as Shively asserts, the rule is subject to
the exception that when the plaintiff's contributory
negligence, itself, amounts to willful and wanton conduct,
recovery is barred.
. .
. In other words, while contributory
negligence, in the sense of failing to exercise ordinary care
for one's safety, is not a defense to a defendant's willful
and wanton negligence, a plaintiffs wanton and reckless
disregard for his own safety bars recovery even against a
161.
162.
315 S.E.2d 210 (Va. 1984).
Id. at 212.
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defendant whose conduct also amounts to willful and
wanton negligence. The reason for this exception is that,
when two persons are equally at fault in producing the
injury, neither's negligence is the proximate cause of the
injury. Consequently, the law leaves both parties where it
finds them.' 63
The court ruled that the case presented a jury issue that should
be resolved on remand in one of three ways, reflecting the three
rules that are present in the court's analysis:
Therefore, on remand the following possibilities exist: first,
the jury could find both Sutherland and Shively guilty of
willful and wanton negligence, in which case, there can be
no recovery; or, secondly, the jury could find that Shively's
conduct was willful and wanton negligence but
Sutherland's negligence was not willful and wanton, in
which event Sutherland is entitled to recover; or, finally,
the jury could conclude that Shively's conduct did not rise
to that degree of culpability amounting to willful and
wanton negligence, in which case, Sutherland's
contributory negligence bars recovery.164
The OPA counterpart of this exception to an exception, which
has been described as Rule #3, is found in section 2703(b).16 5
Under the heading of "Defenses to Liability," it provides that as to
particular claimants: "A responsible party is not liable under
section 2702 of this title to a claimant, to the extent that the
incident is caused by the gross negligence or willful misconduct of
the claimant."166
From the foregoing it is evident that in using "gross
negligence" and "willful misconduct," Congress was probably
drawing upon the common law background of contributory
negligence in tort, however divided the courts of the various states
have been in formulating gross negligence.
D. Gross Negligence andImmunity (IncludingGratuitousBailment)
A third significance that developed for the terms "gross
negligence" and "willful misconduct" in tort law came about
through both common law and statutory means. Gratuitous
bailment, one of the earliest of these means, is an ancient
163.
164.
Id. at 213.
Id. at 213-14.
165.
33 U.S.C. § 2703(b) (2006).
166.
Id. (emphasis added).
GROSS NEGLIGENCE AND THE OPA
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1007
description of the relationship between bailor and bailee when one
party has been given control over the property of another. This
relationship may arise from contract or by operation of law. If
injury or loss occurs to the property while it is in the possession of
the bailee, should the bailee be liable? Originating in Roman law
and brought into English law in Coggs v. Bernard,167 it Was
generally accepted that the gratuitous bailee was immune from
liability unless she was grossly negligent. The doctrine was
imported into the United States by Justice Story in Tracy v.
Wood.168
The raising of "gross negligence" as an exception to an
immunity doctrine or immunity statute is best seen as an "escape
route" allowing a court or jury to hold bad actors liable for
blameworthy or reprehensible conduct where application of the
immunity rule would lead to injustice. Legal systems often create
rule-avoiding norms that accompany the rules themselves, as
brought out by Frederick Schauer. He has observed:
Legal systems must provide some escape route from the
occasional absurdity generated by literal application
because applying the literal meaning of a rule can at times
produce a result which is plainly silly, clearly at odds with
the purpose behind the regulation, or clearly inconsistent
with any conception of wise policy.16 9
Specifying that an actor's grossly negligent conduct will invalidate
an immunity is just such an escape route, albeit an imprecise one.
Often legislatures have wished to encourage certain activities,
and they have sought to protect the actors from liability. Hence,
they have provided an express immunity from tort liability
sounding in negligence. There are a variety of such statutes: among
them are the automotive guest statute, the recreational activity
statute, and Good Samaritan legislation. The ability of a legislature
to do this as a matter of constitutional law has been challenged as a
violation of natural justice (denying a natural right of
compensation for injury) or as intruding into a function allocated to
the courts by a state constitution (separation of powers). In
enacting such immunity statutes, the legislatures have limited the
immunity to "ordinary negligence" and have denied immunity
where the actions of an actor are characterized as "gross
negligence" or "willful misconduct," thereby establishing an
"escape route."
167.
168.
169.
(1703) 92 Eng. Rep. 107 (K.B); 2 Ld. Raym. 909.
24 F. Cas. 117 (Story, Circuit Justice, C.C.D.R.I. 1822).
Schauer, supra note 45, at 525.
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1LOUISIANA LAW REVIEW
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The following formula expresses the effect of these statutes:
Rule #1: If A has injured B through X [negligence] then
consequence #1 [A is not liable to B for damages];
however
Rule #2: If A has injured B through Y [gross negligence or
willful misconduct] then consequence #2 [A is liable to B for
damages].
As indicated above, legal statements can be recursive, so the
formula may be expanded. Some statutes (including the OPA)
expressly expand the rule, demonstrating the three rule
formulations of contributory negligence discussed above:
Rule #1: If A has injured B through X [negligence] then
consequence #1 [A is not liable to B for damages];
however
Rule #2: If A has injured B through Y [gross negligence or
willful misconduct] then consequence #2 [A is liable to B for
damages];
subject to the exception that
Rule #3: If A has injured B through Y [gross negligence or
willful misconduct] and if B's injury is partially due to B's
own Y [gross negligence or willful misconduct], then
consequence #1 [A is not liable to B for damages].
A common type of such immunity-from-negligence statute is
the recreational use statute. About 40 states adopted statutes
followinp_ a common pattern to relieve landowners of negligence
liability. o An example can be taken from a Michigan statute that
provided:
No cause of action shall arise for injuries to any person
who is on the lands of another without paying to such other
person a valuable consideration for the purpose of fishing,
hunting,
trapping,
camping,
hiking,
sightseeing,
motorcycling, snowmobiling, or any other outdoor
recreational use, with or without permission, against the
owner, tenant, or lessee of said premises unless the injuries
were caused by the gross negligence or willful and wanton
misconduct of the owner, tenant, or lessee.' 7 '
§ 34, at 211 n.36.
Burnett v. City of Adrian, 326 N.W.2d 810, 813 (Mich. 1982) (quoting
MICH. COMp. LAWS. § 300.201 (repealed 1994)) (internal quotation marks
omitted); see also TENN. CODE ANN. § 70-7-104 (West, Westlaw through 2010
Reg. Sess.) ("This part does not limit the liability that otherwise exists for: (1)
170.
171.
KEETON ET AL., supra note 6,
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GROSS NEGLIGENCE AND THE OPA
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Such a statute is designed to protect a landowner from suits by
non-business guests and by trespassers. Legislators in enacting
these statutes are responding to citizen-landowners' concerns that
they will be sued for their hospitality in letting friends come onto
their property. Such statutes reflect a conviction that trespassers
ought not benefit from their wrongdoing in entering another's
property without consent and then filing claims that the property
was not made safe for their enjoyment. The well-founded fears of
such suits make owners less likely to share their property with
friends and acquaintances and diminish friendship and community.
For similar reasons, many legislatures enacted "automobile
guest statutes" to protect vehicle owner-drivers from liability for
injuries suffered by passengers.172 A person's automobile has been
seen as similar to his or her home or real property. The rationale
for limiting liability is given as hospitality protection (reflecting a
duty of gratitude in some legal systems) and as collusion
prevention (looking to the interests of insurers). An example of a
typical statute is the Montana Automobile Guest Act of 1931:
Section 1. The owner or operator of a motor vehicle shall not
be liable for any damages or injuries to any passenger or
person riding in said motor vehicle as a guest or by invitation
and not for hire, nor for any damages to such passenger's or
person's parent or guardian, unless damage or injury is
caused directly and proximately by the grossly ne ligent and
reckless operation by him of such motor vehicle.'
Prosserand Keeton comments that the definition of the
proscribed misconduct varies from state to state, according
to the fancy of the legislature and compromises in drawing
the particular act.
. .
. There is so much individual variation
in the statutes, and in their interpretation, that it may safely
be said that there are as many different guest laws as there
are acts.1 74
Despite the variation in the words of such statutes, courts and
juries seem in fact to make fine distinctions. A legislature may pass
Gross negligence, willful or wanton conduct that results in a failure to guard or
warn against a dangerous condition, use, structure or activity .... .").
172. Dozens of statutes and hundreds of cases touching on gross negligence
in relation to automobile guest statutes are taken up in the annotations in 74
A.L.R. 1198 (1931); 86 A.L.R. 1145 (1933); 96 A.L.R. 1479 (1935); and 136
A.L.R. 1270 (1942).
173. Nangle v. N. Pac. Ry. Co., 32 P.2d 11, 12 (Mont. 1934).
174. KEETON ET AL., supra note 6, § 34, at 215.
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0LOUISIANA LAW REVIEW
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a statute providing a driver a qualified immunity from claims of
negligent injury yet give a jury a means of holding the driver liable
if the jury makes the requisite finding of gross negligence or
wanton misconduct. Such a case was Glaab v. Caudill, a Florida
guest passenger statute application.' 7 5 Two couples were riding in
a car when a bag containing cups of iced tea spilled on the
driver.' 7 6 She then took her eyes off the road and both hands off
the wheel for the space of a few seconds to retrieve the iced tea.
The car swerved, jumped a curb, and then struck a utility pole,
injuring the plaintiff passenger. To recover, plaintiff had to
establish gross negligence on the part of the driver. The Florida
court found that a requisite element of gross negligence was
plaintiffs "conscious disregard of consequences." The court said it
equated "'conscious disregard of consequences' with a voluntary
act or omission in the face of conditions toward which reasonable
prudence requires a particularly keen alertness or caution when
such act or omission is dangerous and well-calculated to result in
grave injury."l77 This "conscious disregard of consequences" was
distinct from a "careless" disregard of consequences (as in simple
negligence) or from the more extreme "willful or wanton"
disregard thereof (as in culpable or criminal negligence).1 78
The readiness of courts and juries to find gross negligence or
gross fault to render these statutes ineffective to immunize drivers
from liability can be seen in numerous cases. They use the same
verbal standards of gross negligence but then apply them in
circumstances that many people would probably regard as merely
negligent. Such a case was Neuman v. Eddy, arising under a
Louisiana guest passenger statute.'7 The defendant was driving on
a highway and attempted to pass around some cows that were
walking in the road. He increased his speed to get past a cow that
was alongside the vehicle. The cow collided with the rear end of
the car, which caused the car to skid and overturn. The court
concluded that this was clearly an instance of gross fault:
It seems a necessary conclusion that defendant's act in
increasing his speed to as fast as he could go when he saw
the cow increase her speed, with the view of beating her in
a race and passing ahead of her in the road on the side on
which he was driving, must be accounted, an act on his part
in driving, as a gross fault, within the meaning of the law,
175.
176.
177.
178.
179.
236 So. 2d 180 (Fla. Dist. Ct. App. 1970).
Id. at 182.
Id. at 185.
Id.
130 So. 247 (La. Ct. App. 1930).
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GROSS NEGLIGENCE AND THE OPA
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and negligence and imprudence for which he cannot be
excused.1m
Is falling asleep while driving a willful action? Several juries
have found that falling asleep can be the equivalent of an
intentional tort in order to award damages, even though the driver
would be immune if only negligent.'
Such was the case of
Lankford v. Mong.182 Under the Alabama guest passenger statute,
the operator or owner of a vehicle in which a guest is injured is
liable only if the injury was caused by the willful or wanton
misconduct of the owner or operator. 83 The Lankford court
defined "wantonness":
Wantonness is the conscious doing of some act or omission
of some duty under knowledge of the existing conditions
and conscious that from the doing of such act or omission
of such duty injury will likely or probably result. Before a
party can be said to be guilty of wanton conduct, it must be
shown that with reckless indifference to the consequences
he consciously and intentionally did some wrongful act or
omitted some known duty which produced the injury.184
The Court expressed the basis upon which an issue such as
"wantonness" should be submitted to a jury: "Ifthe evidence or the
reasonable inferences arising therefrom furnish a mere gleam,
glimmer, spark, the least particle, the smallest trace, a scintilla, in
support of the theory of the complaint."' 85 The small trace, the
particle, the scintilla in support of plaintiffs claim so as to find
defendant's liability through reckless indifference was that
defendant knew he was sleepy and yet chose to continue to drive;
thus it was a question for the jury as to whether he had knowledge
of facts that would disclose the danger of going to sleep to any
reasonable man. The "willful misconduct" here was not the intent
180. Id. at 250 (citations omitted).
181. See Lankford v. Mong, 214 So. 2d 301 (Ala. 1968); see also White v.
King, 223 A.2d 763 (Md. 1968) (applying Michigan law); Moore v. Patrone, 10
N.E.2d 69 (Mass. 1937); Hardgrove v. Bade, 252 N.W. 334 (Minn. 1934). See
generally James 0. Pearson, Jr., Annotation, Motor Vehicle Passenger's
ContributoryNegligence or Assumption of Risk Where Accident Resultedfrom
Driver's Drowsiness, Physical Defect, or Illness, 1 A.L.R.4TH 556 (1991);
Timothy E. Travers, Annotation, Liability for Automobile Accident Allegedly
Caused by Driver's Blackout, Sudden Unconsciousness, or the Like, 93
A.L.R.3D 326 (1980).
182. Lankford, 214 So. 2d 301.
183. Id. at 303.
184. Id. at 302.
185. Id.
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2LOUISIANA LAW REVIEW
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to cause a particular injury but instead the misconduct of driving
while sleepy, knowing that injury to another might result.186 The
awareness of sleepiness followed by the choice to continue to drive
was the intentional misconduct; in itself, falling asleep while
driving might be mere negligence.
Yet another popular type of limited liability or immunity
statute is the "Good Samaritan" statute. The first Good Samaritan
statute appears to have been passed in 1959,187 and since then all
states have enacted some form of the legislation. These statutes
seek to relieve health care workers from negligence liability for
providing gratuitous, voluntary care to nonpatients. They aim to
increase the likelihood of rescue by reducing its potential liability
costs. In certain respects they are similar to the "recreational use"
and "automobile guest" statutes in that they seem prompted by the
sense that a non-paying patient ought to be grateful for receiving
care. They also reflect a policy of encouraging people to provide
emergency care. As with the other types of immunity statutes, the
legislatures do not want to shelter really bad emergency treatment,
so they provide that the caregiver can still be liable for care that is
grossly negligent or rises to the level of willful misconduct. This is
the legislative "escape route." Here, too, the specifics of culpable
care vary from state to state. An example of such a statute is one
enacted in Alaska:
(a) A person at a hospital or any other location who renders
emergency care or emergency counseling to an injured, ill,
or emotionally distraught person who reasonably appears to
the person rendering the aid to be in immediate need of
emergency aid in order to avoid serious harm or death is
not liable for civil damages as a result of an act or omission
in rendering emergency aid....
(d) This section does not preclude liability for civil
damages as a result of gross negligence or reckless or
intentional misconduct.' 8 8
Many other immunity statutes have been passed in state after
state, often reflecting particular interests within a state. Louisiana,
186. Id. at 302-03.
187. Norman S. Oberstein, Note, Cahfornia Good Samaritan Legislation:
Exemptions from Civil Liability While Rendering Emergency Medical Aid, 51
CALF. L. REv. 816 (1963); Danny R. Veillux, Annotation, Construction and
Application of "Good Samaritan Statutes," 68 A.L.R.4TH 294 (1989).
188. ALASKA STAT. ANN. § 09.65.090 (West 2007). For an example of a
narrowly focused act of this type, see Maryland's Emergency Medical
Services-Automated External Defibrillator Program Act, MD. CODE ANN.,
EDUC. § 13-517 (West, Westlaw through 2010 Reg. Sess.).
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GROSS NEGLIGENCE AND THE OPA
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for example, has a special statute that groups together legislative
protection of owners of farm, forest, and mineral properties. As to
the latter of the three, it provides in relevant part:
An owner of oil, gas, or mineral property shall not be liable
to any person who unlawfully enters upon his oil, gas, or
mineral property, for damages for any injury, death, or loss
which occurs while on the oil, gas, or mineral property of
the owner, unless such damage, injury, or death was caused
by the intentional act or gross negligence of the owner. 8 9
For purposes of this provision, gross negligence has been
defined in Wall v. Kelly Oil & Gas Co. as the "want of even slight
care and diligence" and the "want of that diligence which even
careless men are accustomed to exercise." 90 It has also been
defined as the "entire absence of care" and the "utter disregard of
the dictates of prudence, amounting to complete neglect of the
rights of others."'91 Additionally, gross negligence has been
described as an "extreme departure from ordinary care or the want
of even scant care."' 92
Related conceptually to the legislative provision of immunity is
legislative or judicial preclusion of immunity-by-contract. There
are statutes and common law decisions to the effect that while
there can be an assumption of the risk and express waiver of
liability in appropriate circumstances, it is against law or public
policy to waive liability in advance for gross negligence or willful
misconduct.' 93 This appears to be the rule in maritime law.194
Article 2004 of the Louisiana Civil Code is to the same effect.' 95 In
City of Santa Barbara v. Superior Court, a developmentally
189. LA. REv. STAT. ANN. § 9:2800.4 (2009).
190. 27 So. 3d 1071, 1074-75 (La. Ct. App. 2009).
191. Id. at 1075.
192. Id.
193. RESTATEMENT (FIRST) OF CONTRACTS § 575 (1932).
194. Lykes Bros. S.S. Co. v. Waukesha Bearings Corp., 502 F. Supp. 1163
(E.D. La. 1980); THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW §
5-6 n.51 (Westlaw through 2010 Update). The court in Lykes Bros. expressed
"gross negligence" as follows: "For reasons of public policy, the protection
afforded by disclaimer clauses extends only to ordinary negligence, but not to
gross negligence, that is, conduct falling greatly below the standard established
by law for the protection of others against unreasonable risk of harm." 502 F.
Supp. at 1172; see also Todd Shipyards Corp. v. Turbine Serv., Inc., 467 F.
Supp. 1257 (E.D. La. 1978), rev'd in part, 674 F.2d 401 (5th Cir. 1982).
195. LA. CIV. CODE ANN. art. 2004 (2008) (making null any clause in a
contract that, "in advance, excludes or limits the liability" of one party for
causing physical injury to the other party or for damages to the other party
resulting from "intentional or gross fault").
4LOUISIANA LAW RE VIEW
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disabled 14 year old drowned when the city-appointed counselor
supervising the swimmer turned her attention away from the child
for no more than 15 seconds.196 Although the child's mother had
signed a form releasing the city from liability for any negligent act,
the California Supreme Court ruled that there could be no advance
waiver for gross negligence. The court concluded: "[C]onsistent
with dicta in California cases and with the vast majority of out-ofstate cases and other authority, that an agreement made in the
context of sports or recreational programs or services, purporting
to release liability for future gross neglience, generally is
unenforceable as a matter of public policy."' 9 The court said that
gross negligence long "has been defined in California and other
jurisdictions as either a 'want of even scant care' or 'an extreme
departure from the ordinary standard of conduct."'l98 The court did
not disturb the finding below that the less than 15 seconds of
inattention presented a material triable issue regarding gross
negligence.
E. Gross Negligence and Manslaughter-FederalLaw
Gross negligence has come into federal criminal law in a series
of cases that have ruled that ordinary negligence cannot be the
basis of a conviction for manslaughter. The relevant statute
provides: "(a) Manslaughter is the unlawful killing of a human
being without malice; (b) Within the special maritime and
In United States v.
territorial jurisdiction of the United States.
Pardee, the defendant was convicted of involuntary manslaughter
in driving an automobile on the wrong side of the road where he
struck an automobile coming in the opposite direction. 20f The court
held that the jury instructions concerning an alleged section 1112
offense were insufficient because they failed to advise that the
Government must prove: (1) that the defendant acted with "gross
negligence," defined as "wanton or reckless disregard for human
life," and (2) that the defendant had actual knowledge that his
conduct was a threat to the lives of others, or had knowledge of
such circumstances as could reasonably be said to have made
foreseeable to him the peril to which his acts might subject others.
196. 161 P.3d 1095 (Cal. 2007).
197. Id. at 1097.
198. Id at 1099.
199.
200.
201.
Id. at 1118 n.61.
18 U.S.C. § 1112 (Supp. 2009).
368 F.2d 368, 371 (4th Cir. 1966).
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Other cases arising under the federal statute have followed
202
Pardee.
Where did the Pardee court get its gross negligence
requirement from? It seems likely that the court drew upon the
same sense that has driven the development of tort law. Many
people have thought ordinary negligence should not be the object
of punishment in tort law. Similarly, one would conclude that a
person should not be imprisoned or fined for ordinary negligence.
Thus is given birth the concept of "gross negligence" in the
judicial lexicon to describe reprehensible conduct that ought to be
punishable.
The step from "gross negligence" in tort law to "gross
negligence" in criminal law is made explicit in tracing the
relationship of Louisiana tort law and Louisiana criminal law.
Section 12 of Title 14 of the Louisiana Revised Statutes delineates
"Criminal Negligence" as follows:
Criminal negligence exists when, although neither specific
nor general criminal intent is present, there is such
disregard of the interest of others that the offender's
conduct amounts to a gross deviation below the standard of
care expected to be maintained by a reasonably careful man
under like circumstances. 2 03
The Reporter's Comments state directly that this standard is
taken from the law of torts:
[N]egligence is defined as a combination of action or
nonaction plus a certain state of mind. Unlike the situation
where intent, or adversion to consequences, is involved,
here the state of mind is rather negative, and consists in a
disregard of consequences. As a result, the offender falls
far below a certain standard of care which is defined in this
section in the traditional fashion. Criminal negligence, in
202. United States v. Benally, 756 F.2d 773 (10th Cir. 1985); United States
v. Keith, 605 F.2d 462 (9th Cir. 1979); United States v. Dixon, 419 F.2d 288
(D.C. Cir. 1969); see MICHAEL BROOKS CARROLL ET AL., PRACTISING LAW
INSTiTUTE, RECKLESSNESS AND GROss NEGLIGENCE AS REQUISITE MENTAL
ELEMENTS (1985), available at Westlaw, 140 PLI/Crim 385; William S. Laufer,
Culpability and the Sentencing of Corporations,71 NEB. L. REv. 1049 (1992);
C.T. Foster, Annotation, Test or Criterion of Term "Culpable Negligence, "
"CriminalNegligence," or "Gross Negligence," Appearing in Statute Defining
or Governing Manslaughter, 161 A.L.R. 10 (1946).
203. LA. REv. STAT. ANN. § 14:12 (2007).
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6LOUISIANA LA W RE VIEW
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fact, corresponds to the concept of "gross negligence" in
tort law."
Additional light on this conceptualization of "gross
negligence" is shed in the Reporter's Comments to the linked
statute, Section 8 of Title 14, where the Reporter sets forth the
relationship between intentional action and negligent action:
With reference to intentional crimes, it is well accepted that
they consist of two elements, a physical one, known as an
"act," and a mental one, known as "intent." With reference
to "negligent" crimes, there is considerable confusion as to
their elements. The section proceeds upon the theory that in
what we call "negligence," both human acts or failures to
act and some state of mind are inextricably bound together,
as appears in one of the following sections defining
"criminal
"n205
enmlnegligence.
Thus gross negligence can be found when an action is bound
together with a certain state of mind; this is true whether it is in a
criminal context or a tort context.
F. Application of Gross Negligence and Willful Misconduct Under
the OPA in Administrative Review Cases
One case has taken up the meaning of "gross negligence" under
the OPA in the review of an administrative finding of gross
negligence in an oil spill. Another administrative review case has
interpreted the meaning of "willful misconduct" in the OPA.
The more recent of these was Water Quality Insurance
Syndicate v. United States.20 6 The case arose from an incident in
which a tug boat (the Victoria Rose Hunt) capsized in the
Massachusetts Bay three nautical miles off the coast of
Massachusetts. It sank during an attempt to move an anchor
The tug contained around 8,000
belonging to a dredge barge.
gallons of fuel oil and an unknown quantity of other pollutants.
Some of the oil escaped but a large portion remained aboard. 208 Six
weeks later the tug was salvaged. The tug's insurer, plaintiff Water
Quality Insurance Syndicate, paid for the cleanup of the oil spill
and the salvage. It filed a claim for partial reimbursement pursuant
204. Id reporter's comment (citing RESTATEMENT (FIRST)
84, 500 (1934)).
205. LA. REv. STAT. ANN. § 14:8.
206. 632 F. Supp. 2d 108 (D. Mass. 2009).
207. Id. at I10.
208. Id. at 111.
OF TORTS
§§ 282-
2011]
GROSS NEGLIGENCE AND THE OPA
1017
to section 2708(a)(2) of the OPA with the U.S. Coast Guard's
National Pollution Funds Center (NPFC) for $492,233.68. This
was the amount it expended above the $500,000 limitation of
liability amount set out in section 2704(a)(2) for a vessel of the
size of the tug.
The NPFC denied the insurer's claim on two grounds: (1) that
the captain violated a federal safety regulation that required ship
personnel to be familiar with the characteristics of the vessel prior
to assuming duties, and (2) that the capsizing of the tug was caused
by the captain's gross negligence.2 0 The insurer and the Coast
Guard did not disagree on the standard for gross negligence,
which, they concluded, was set forth in Kuroshima Shipping S.A.
Act of God Defense & Limit ofLiability Analysis.
The decision in Kuroshima Shipping was nothing more than
the decision of a claims manager for the NPFC. The standard he
applied was drawn solely from the NPFC's own definition, which
seems to have been promulgated without any sort of rulemaking:
The NPFC has defined gross negligence as follows:
Gross negligence: Negligence is a failure to exercise the
degree of care, which a person of ordinary caution and
prudence would exercise under the circumstances. A
greater degree of care is required when the circumstances
present a greater apparent risk. Negligence is "gross" when
there is an extreme departure from the care required under
the circumstances or a failure to exercise even slight care.
The NPFC has defined willful misconduct as follows:
Willful misconduct: An act, intentionally done, with
knowledge that the performance will probably result in
injury, or done in such a way as to allow an inference of a
reckless disregard of the probable consequences. 2 10
The claims manager evidently examined no cases and no
legislative history of the OPA. After reviewing the facts of the oil
spill in Kuroshima Shipping, the claims manager concluded that a
series of mistakes were made, and negligence was present.211
However, he could not conclude that gross negligence or willful
misconduct caused the incident. There was no extreme departure
from reasonable care or any absence of care. There also was no
reckless disregard for the consequences. The incident was also not
209. Id. at 112.
210. Kuroshima Shipping S.A. Act of God Def. & Limit of Liab. Analysis,
2003 AM. MAR. CASES 1681, 1693 (U.S. Coast Guard Nat'l Pollution Funds Ctr.
June 23, 2003).
211. Idat1701.
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8LOUISIANA LA W RE VIEW
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the result of an intentional act where the grounding and spill were
known and intended consequences. Moreover, the grounding was
not proximately caused by the responsible party's violation of a
federal regulation. Therefore, the responsible party in Kuroshima
Shipping was entitled to limit its liability pursuant to the OPA.
In Water Quality Insurance Syndicate, the NPFC concluded
that the tug captain was grossly negligent, and the insurer, Water
Quality, was therefore not entitled to the limitation of liability. The
district court upheld the administrative agency's decision. It agreed
with the agency that plaintiff, not the United States, bears the
burden of proving its entitlement to a limitation of liability, in
order to recover from the Fund under section 2708(a)(2) (Recovery
by Responsible Party) of the OPA. This raises an issue of who
would bear the burden of proof on gross negligence where a
responsible party is not seeking recovery from the Fund.
The court also upheld the agency's finding of the tug captain's
gross negligence. The gross negligence arose from a series of acts,
as stated by the court:
The NPFC identified the following facts, which are
supported by the record: Captain Toolis had not worked at
sea during the three years prior to the day the Tug capsized;
he had been hired the night before and had never been on
the Tug prior to that day; he had no previous experience or
familiarity with the "cage design" of the roller guide prior
to that day and failed to appreciate its effect on the Tug's
stability; he was unaware of both the weight of the Anchor
and the Tug's capabilities; he failed to contact the SEI 03's
winch operator to insure its brake was released; he
nonetheless persisted in his efforts to raise the Anchor in
the face of repeated failures and dangerous listing of the
Tug; and he left the winch and Tug throttles engaged
despite the Tug's stern becoming submerged. 212
The agency and the court also identified a violation of a
regulation: under the facts most favorable to the claimant, the
12.5 hours in a 24-hour period in violation of
captain had worked
the regulation. 213 The court felt compelled to uphold the apency's
There
decision under the standard of review of agency action.
was, the court said, a rational connection between the facts and the
NPFC's conclusion that the captain acted with gross negligence.
212.
114-15
213.
214.
Water Quality Ins. Syndicate v. United States, 632 F. Supp. 2d 108,
(D. Mass. 2009).
Id. at 115.
Id.
2011]
GROSS NEGLIGENCE AND THE OPA
1019
The court ruled that "the conclusion is 'supported by a rational
basis,' and therefore must be affirmed." 2 15
Although the parties had agreed that the Kuroshima Shipping
decision controlled on the legal standard for gross negligence, the
court also took into account two pre-OPA cases, In re Oil
Transport Co.216 and Harcon Barge Co. v. M/V IB. Chauvin.2 17
These were maritime gross negligence cases, of which the court
noted, "[T]he standard of gross neigence is not widely discussed
in maritime jurisprudence . . . ."
Having considered them, the
court stood by its deference to the agency: "It is not this court's
role to substitute its judgment for that of the NPFC."219 The role of
finding "gross negligence" in both of these cases seems to have
been unnecessary.
In the earlier case, In re Oil Transport Co., the court made a
finding of gross negligence where a tugboat, after two attempts to
pass under a bridge before the drawspan was opened, made a third
attempt.220 It was trying to enter the draw at a 45-degree angle and
collided with the bridge. The vessel sank, killing one of the two
captains and four other crew members. Among the claimants were
representatives of the crew and the surviving captain. The court
found both captains grossly negligent (each at 50%) for allowing
the tow to continue to drift toward the drawbridge despite failure to
receive a response from a drawbridge operator. The court based its
finding on a presumption of fault that arises when navigators bring
a vessel in collision with a stationary object; nothing in the record
brought that presumption into question. The purpose of the
proceeding before the judge was to get a ruling of limitation of
liability by the bareboat charterers and owner of the vessel; the
request for the ruling was denied for failure to comply with the
limitations statute. 22 The effect of finding gross negligence may
have been to defeat claims by the representative of the deceased
captain and by the surviving captain, but this is by no means clear
from the opinion.
In Harcon Barge Co., the court-ruling on an admiralty, or
maritime, claim-made a finding of major statutory fault and gross
negligence in the navigational maneuvers of the pilot of an
upstream-bound vessel in proceeding full speed ahead with the
certain knowledge of the proximity of the downbound vessel with
215.
216.
217.
218.
219.
220.
221.
Id.
178 F. Supp. 48, 53 (E.D. La. 1959).
487 F. Supp. 187 (N.D. Miss. 1979).
Water Quality, 632 F. Supp. 2d at 115.
Id.
In re Oil Transp. Co., 178 F. Supp. at 53.
Id. at 51 n.6 (citing 46 U.S.C. § 185 (2006)).
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0LOUISIANA LA W RE VIEW
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which the upstream-bound vessel collided.2 2 2 The plaintiff was the
owner and operator of the downstream-bound vessel and barges,
and the defendant was the owner and operator of the upbound
barge and vessel. The court found as a fact that "the sole proximate
cause of the involved casualty was the gross negligence of the
[upbound] pilot in allowing the head of his tow to leave slack
water and get caught by the current, causing it to sheer and move
outriver, into the tow of the downbound" vessel. This decision was
made in 1979, after the United States Supreme Court had abolished
the divided damages rule whereby in cases of both-to-blame
collisions the resulting damages were divided among the parties.
Since the Court's 1975 decision in United States v. Reliable
Transfer Co.,223 admiralty decisions apply the doctrine of "pure"
comparative negligence, whereby damages are apportioned
according to the negligence or fault of each party.2 24 The purpose
and effect of the "gross negligence" finding in Harcon Barge Co.
was to cast all of the fault upon the upbound vessel. The gross
negligence of the pilot of the upbound vessel was the "sole
proximate cause" of the collision, and "any 'fault' on the part of
the [downbound vessel] did not cause or contribute to this
casualty." Hence, all loss was to be borne by the defendant.
Because admiralty/maritime law had moved to comparative
negligence, there was no need for the court to make a finding of
"gross negligence." It seems merely to have been for the purpose
of saying all negligence was upon the defendant and none upon the
plaintiff.
The case taking up "willful misconduct" under the OPA had
the same name as the case involving "gross negligence" but
involved an entirely different incident and invoked a different
provision of the OPA from section 2708(a2). This was Water
Quality InsuranceSyndicate v. United States. 5 Here the guarantor
of a responsible party filed under section 2716(f) of the OPA for
reimbursement of funds expended. This section of the OPA allows
a guarantor to invoke against its own liability "the defense that the
incident was caused by the willful misconduct of the responsible
party." That is, under this provision of the OPA, a guarantor will
be held liable to the extent of its guarantee for any liability of its
responsible party for gross negligence but not for the willful
misconduct of the responsible party. It gets recovery of all its
222.
223.
224.
225.
487 F. Supp. at 191.
421 U.S. 397 (1975).
SCHOENBAUM, supra note 194, § 5-4.
522 F. Supp. 2d 220 (D.D.C. 2007).
2011]
GROSS NEGLIGENCE AND THE OPA
1021
expenditures from the Fund if it can establish the willful
misconduct of the party for which it has given guarantee.
This Water Quality Insurance Syndicate case arose from a
1994 tow job in which a tug towed a tank barge that was halfloaded with fuel oil from Puerto Rico. The towline parted, and the
crew repaired the tow wire with an emergency "soft eye" to
connect the tug and barge. The wire parted again, and the barge ran
onto a Puerto Rican beach reef spilling 798,000 gallons of fuel oil.
The NPFC, on behalf of the Oil Spill Liability Trust Fund,
invoiced Water Quality Insurance Syndicate (WQIS) for oil
removal expenses incurred by the Fund as a result of the oil spill.
WQIS paid $4,506,550 to the NPFC. In 1998, WQIS submitted a
claim to the NPFC for $9,558,376.98 against the Fund,
representing the $4,506,550 previously paid to the NPFC and
$5,051,826.90 paid directly to contractors for oil removal
expenses. Upon the failure of the NPFC to honor the claim, WQIS
filed suit for reimbursement from the Fund. By the time of trial,
NPFC formally denied the claim. The district court reversed,
remanding for further consideration by the agency.
The federal district court reversed the NPFC's decision on two
critical interpretations of OPA statutory terms. First, the agency
erred when it focused on the "oil spill" or the "discharge," rather
than on the broader meaning of the statutory term "incident." 226
The question for the case was not whether the willful misconduct
was the "proximate cause" of the oil spill but rather, whether the
"incident was caused by the willful misconduct of the responsible
party." 227 The "incident," said the court, was not the oil spill itself
but what caused the spill; indeed, the "incident" may be a "series
of occurrences" resulting in the oil spill.228 Second, the agency
erred in concluding that "willful misconduct" must be a single act
"intentionally done" and that a series of negligent acts can never
constitute willful misconduct.229 The agency used the following
definition of "willful misconduct": "Willful misconduct is an act,
intentionally done, with knowledge that the performance will
probably result in injury, or done in such a way as to allow an
inference of reckless disregard of the probable consequences. A
series of negligent acts does not constitute willful misconduct." 230
226.
Id. at 228-29.
227. Id. at 226.
228.
229.
230.
Id. at 229.
Id.
Id. at 228.
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2LOUISIANA LAW REVIEW
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The court instead applied a definition of willful misconduct
formulated by the Second Circuit in Tug Ocean Prince, Inc. v.
UnitedStates:
[T]his circuit has established the following criteria for a
finding of willful misconduct: an act, intentionally done,
with knowledge that the performance will probably result in
injury, or done in such a way as to allow an inference of a
reckless disregard of the probable consequences. If the harm
results from an omission, the omission must be intentional,
and the actor must either know the omission will result in
damage or the circumstances surrounding the failure to act
must allow an implication of a reckless disregard of the
probable consequences. The knowledge required for a
finding of willful misconduct is that there must be either
actual knowledge that the act, or the failure to act, is
necessary in order to avoid danger, or if there is no actual
knowledge, then the probability of harm must be so great
that failure to take the required action constitutes
recklessness. 2 3 1
Presumably, the Water Quality InsuranceSyndicate court would
find that gross negligence could be found in a series of negligent
acts. Just what, then, was the "willful misconduct"? It was the
responsible parties' sending an unseaworthy vessel to sea:
[T]he decision of the responsible parties in this case
knowingly to send an unseaworthy vessel to sea, along with
the accumulation of other acts that resulted in the oil spill,
constitutes reckless disregard and willful misconduct, and ...
the agency therefore erred when it concluded that the OPA
defense of willful misconduct did not apply. 232
In other words, the willful misconduct was not intent to cause a
particular injury or outcome but an intent to embark on a risky
course of action. To this writer, this seems identical to the analysis
for gross negligence in the multitude of gross negligence cases
discussed above. However, a finding of gross negligence rather
than willful misconduct would have defeated the claim under
section 2716(f) of the OPA.
It is submitted that neither of the cases involving the NPFC has
much precedential value for interpreting gross negligence and
willful misconduct under the OPA.
231.
232.
584 F.2d 1151, 1162-63 (2d Cir. 1978) (citations omitted).
Water Quality Ins. Syndicate, 522 F. Supp. 2d at 230.
2011]
GROSS NEGLIGENCE AND THE OPA
1023
G. Application of Gross Negligence in a Fifth Circuit Case
A case of special interest in defining gross negligence for the
multidistrict litigation related to the Deepwater Horizon incident is a
non-OPA well blowout case litigated in the Eastern District of
Louisiana, Houston Exploration Co. v. HalliburtonEnergy Services,
Inc.233 At issue was the enforceability of an indemnity agreement
under Louisiana or maritime law. 23 An oil and gas producer held a
lease on the Outer Continental Shelf. It sued Halliburton Energy
Services, Inc. ("Halliburton") for damages after plaintiffs gas well
blew out as Halliburton conducted drill stem testing on the well.
Halliburton contended that negligence by the plaintiff and the vessel
owners contributed to the failure of the well and precluded recovery
under Louisiana's comparative negligence standard. The district
judge found that Halliburton's negligence in failing to check that an
adequate number of shear pins were in place in an Internal Pressure
Operating valve on two separate occasions was the proximate cause
of the blowout.2 35 Halliburton further asserted that it was shielded
from liability under the indemnity agreement between Halliburton
and plaintiff, which required plaintiff to release and indemnify
Halliburton. Plaintiff responded that a Louisiana Civil Code article
rendered the indemnity agreement null. The district court ruled that
the indemnity provisions "cannot be enforced because of the Court's
finding that Halliburton's gross negligence caused the blowout." 236
Bound by the Erie doctrine and the OCSLA to apply Louisiana law,
the court looked to Louisiana cases defining gross negligence. The
court looked to definitions under both Louisiana law and maritime
law:
Gross negligence has been defined as the want of that
diligence which even careless men are accustomed to
exercise. Gross negligence has also been termed the entire
absence of care and the utter disregard of the dictates of
prudence, amounting to complete neglect of the rights of
others. Additionally, gross negligence has been described
as an extreme d2eparture from ordinary care or the want of
even scant care.
233. 269 F.3d 528 (5th Cir. 2001).
234. Id. at 531.
235. Hous. Exploration Co. v. Halliburton Energy Servs., Inc., No. CIV. A. 981302, 2000 WL 423909 (E.D. La. Apr. 18, 2000), vacated,269 F.3d 528 (5th Cir.
2001).
236. Id. at *6.
237. Id. at *7 (quoting Ambrose v. New Orleans Police Dep't Ambulance
Serv., 639 So. 2d 216, 219-20 (La. 1994)) (internal quotation marks omitted).
1024
LOUISIANA LA WRE VIEW
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The concept of gross negligence is essentially the same
under maritime law: "Gross negligence is defined as harm
wilfully inflicted or caused by gross or wanton negligence."2 3 8
The Civil Code article applied by the district court does not
actually use the term "gross negligence." Instead, the provision
reads: "Any clause is null that, in advance, excludes or limits the
liability of one party for intentional or gross fault that causes
damage to the other party." 239 Thus the district court (and evidently
the parties to the suit) saw no reason to differentiate between "gross
238. Id. (quoting Coastal Iron Works, Inc. v. Petty Ray Geophysics, 783 F.2d
577, 582 (5th Cir. 1986)) (citing BLACK'S LAW DICTIONARY 1057 (7th ed. 1999)
(defining "gross negligence" as "[a] lack of slight diligence or care" and "[a]
conscious, voluntary act or omission in reckless disregard of a legal duty and of
the consequences to another party")).
239. LA. CIV. CODE ANN. art. 2004 (2008) (emphasis added). On the
correspondence of gross fault to gross negligence and a variety of other
formulations of the degrees of fault, see generally Edwin H. Byrd, III,
Reflections on Willful, Wanton, Reckless, and Gross Negligence, 48 LA. L. REv.
1383 (1988). Byrd notes that the Louisiana Legislature has "used various
combinations of the terms 'willful,' 'wanton,' 'reckless,' and 'gross negligence'
to define standards applicable to exceptions to tort immunity statutes, to solidary
liability, and to the award of exemplary damages." Id. at 1383 (footnotes
omitted). He suggests that perhaps the legislature "employed these terms in the
various statutes somewhat indiscriminately and without careful consideration of
their meaning or of the ambiguities to which they inevitably give rise." Id. at
1384. He identifies the following variants that run together or overlap:
"conspires . . . to commit an intentional or willful act"; "intentional act or gross
negligence"; "deliberate and willful or malicious injury"; "willful or malicious
failure to warn"; "deliberate and wanton act or gross negligence"; "willful or
wanton misconduct"; "wanton or reckless disregard"; "reckless disregard";
"gross negligence"; and "criminal, fraudulent, malicious, intentional, willful,
outrageous, reckless, or flagrant misconduct." Id. at 1386-87. On these he
comments: "Linguistically, each of the eleven adjectives used in these statutes
appears to describe a distinct standard of conduct. By using every combination
of the words, fifty-five different standards could be defined, and by using
conjunctives and disjunctives the legislature could provide even more." Id at
1387. For the manner in which these standards are run together by the courts,
Byrd cites Sullivan v. HartfordAccident & Indemnity Co., 155 So. 2d 432 (La.
Ct. App. 1963). That court made
reference to "gross fault" when defining the "reckless disregard for the
safety of others" standard utilized in the emergency vehicle immunity
statute. With language typical of the confusion that accompanies these
terms, the second circuit in Sullivan used "gross fault" to describe
"reckless disregard," and then clarified what "gross fault" involves with
the statement that it "undoubtedly implies wanton or willful
negligence."
Byrd, supra, at 1392-93.
2011]
GROSS NEGLIGENCE AND THE OPA
1025
fault" and "gross negligence."240 Moreover, the court saw no reason
not to draw its definition of gross negligence from the decision in a
Louisiana Supreme Court case involving an entirely different
statute. In Ambrose v. New Orleans PoliceDepartment Ambulance
Service, the plaintiffs were required to prove gross negligence, not
negligence alone, because of the qualified statutory immunity
afforded emergency medical technicians by Louisiana Revised
Statutes section 40:1235.241 After quoting the standards under
Louisiana law, maritime law, and Black's Law Dictionary, the
district court in Houston Exploration Co. seemed to find gross
negligence simply in the actions of the Halliburton personnel,
without linking the actions to their awareness of the potential
consequences:
[T]he Court finds the actions and inactions of Halliburton
employees Lemaire and Costlow-in failing to inspect and
pin the IPO valve properly on two separate occasionswere so wanting in care and diligence as to rise to the level
of gross negligence, for which Halliburton is accountable
regardless of the release and indemnity terms and
conditions printed on the reverse of Halliburton's printed
form work ticket. Their actions were a clear violation of
Halliburton's established policies and procedures, and
endangered not only the well and the rig, but the lives of all
personnel on the rig. Accordingly, the release and
indemnity clause involved in this case is utterly invalid and
of no effect whatsoever. 242
The Fifth Circuit reversed the district court's application of the
gross negligence standard on appeal. The court did not differ on
the enunciation of the standard; rather, the appeals court found that
the district court failed to adequately consider the knowledge of
risk reasonably in the mind of the defendant's employees. The
Fifth Circuit agreed that Halliburton's employee Lemaire was
240. At one time, the Louisiana Civil Code defined "gross fault." This was in
article 3556(13), which defined it as conduct that "[p]roceeds from inexcusable
negligence or ignorance; it is considered as nearly equal to fraud." The article
identifies three degrees of fault: the gross, the slight, and the very slight fault.
These correspond to the three degrees of negligence identified in the common
law, and both the civil law and the common law systems come from the Roman
law. The Civil Code was revised in 1991 so that article 3556 was redesignated
as article 3506, and the definition of "gross fault" was repealed in 1999. Act No.
503, 1999 La. Acts 1714.
241. 639 So. 2d 216, 220 (La. 1994).
242. Hous. Exploration Co. v. Halliburton Energy Servs., Inc., 2000 WL
423909 at *7 (E.D. La. Apr. 18, 2000), vacated, 269 F.3d 528 (5th Cir. 2001).
1026
6LOUISIANA LAW REVIEW
[Vol. 71
negligent in failing to devise a method of distinguishing between
the dressed (supplied with pins) and undressed (not supplied with
pins) tools.2 But it was not an instance of gross negligence:
A tool operator would reasonably expect that an improperly
pinned valve would result only in a botched drill stem test,
requiring the drill stem to be removed from the well in
order to replace the IPO valve. The record does not support
a conclusion that an operator, such as Lemaire, would
anticipate that an improperly pinned valve would contribute
to a well blow-out.2
In the court's treatment, gross negligence requires that the
negligence of the actor be coupled with a conscious awareness of
the risk of harm. The court indicates this state-of-mind element by
quoting from another Louisiana case defining the standard of gross
negligence:
At least one Louisiana court stated that one is grossly
negligent when he "has intentionally done an act of
unreasonable character in reckless disregard of the risk
known to him, or so obvious that he must be taken to have
been aware of it, and so great as to make it highly probable
that harm would follow.' 45
The court's choice of reliance on this case, Cates v. Beauregard
Electric Cooperative,Inc.,246 is worthy of a comment. That case did
not in fact use the term "grossly negligent" at all. Rather, its inquiry
of a standard arose in the context of a defendant's contention that it
was not liable for injuries sustained by a youth when he came in
contact with an energized electric wire on a power company's utili
pole, which was situated on property of the defendant landowner.2
To defendant's plea that liability was barred by plaintiffs
contributory negligence, the plaintiff apparently asserted that
contributory negligence was inapplicable when the injuries were the
result of the defendant's breach of a duty "not to willfully or
wantonly injure him." 24 8 Relying on Prosser on the Law of Torts,
the court in Cates stated:
243. Hous. Exploration Co. v. Halliburton Energy Servs., Inc., 269 F.3d 528,
532 (5th Cir. 2001).
244. Id.
245. Id. (emphasis added) (quoting Cates v. Beauregard Elec. Coop., Inc.,
316 So. 2d 907, 916 (La. Ct. App. 1975), aff'd, 328 So. 2d 367 (La. 1976)).
246. 316 So. 2d 907.
247. Idat910-11.
248. Id. at 916.
2011]
GROSS NEGLIGENCE AND THE OPA
1027
The terms "willful", "wanton", and "reckless" have been
applied to that degree of fault which lies between intent to do
wrong, and the mere reasonable risk of harm involved in
ordinary negligence. These terms apply to conduct which is
still merely negligent, rather than actually intended to do
harm, but which is so far from a proper state of mind that it
is treated in many respects as if harm was intended. The
usual meaning assigned to . . . the terms is that the actor has
intentionally done an act of unreasonable character in
reckless disregard of the risk known to him, or so obvious
that he must be taken to have been aware of it, and so great
as to make it highly probable that harm would follow. It
usually is accompanied by a conscious indifference to
consequences, amounting almost to a willingness that harm
should follow. 249
To plainly summarize, the Fifth Circuit treated the statutory
term "gross fault" as interchangeable with "gross negligence" and
with "willful," "wanton," and "reckless" conduct. And in each of
these, the court looked to a state of mind that involves an element
of intent. Because the Fifth Circuit will likely be the circuit in
which the meaning of gross negligence and willful misconduct
under the OPA will be applied for the BP Oil Spill, one suspects
that the district court and the Court of Appeals will consider the
Halliburton case as very relevant not only for Louisiana law and
maritime law but also for interpreting the OPA.
CONCLUSION
"Gross negligence" and "willful misconduct," or words of
similar import, operate as a threshold. On one side is lesser or no
liability (or penalty or punishment), and on the other is greater
liability, penalty, or punishment. A judge or jury is the guard at the
threshold who has been empowered or instructed to make a moral
judgment about the conduct of the party at that threshold. Placing
the party on one side or the other requires a moral judgment about
the nature and quality of an act or omission of the party in its choice
of conduct. As reflected in more recent usage, the judgment is about
the reprehensibility-the moral blameworthiness--of the choice of
the party in question. The usage of "gross negligence" and "willful
misconduct," or words of similar import, merges together with
concepts of causation: the human mind in making such a judgment
generally requires that to cross that threshold of blameworthiness the
249. Id.
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[Vol. 71
act constituting the gross negligence and willful misconduct must
have been the principal reason for the injury. Despite efforts of some
writers and courts to separate law and liability from concepts of
morality, the human mind is evidently designed to make such
judgments. Congress in the OPA and FWPCA and similar statutes
has invited, authorized, or mandated such moral judgments in
placing parties on one side or the other of the liability threshold.
Stephen Perry may have been speaking to those who have
complained about the uncertainty of the application of degrees of
negligence or reprehensibility when he wrote:
A theory of strict liability that redistributed loss from the
person who suffered it to whomever else happened to be
causally involved in its production would avoid the
indeterminacy problem, but it would also be morally
indefensible. Once again we seem to be naturally driven
towards normative criteria, such as notions of fault, for
determining who among the persons causally contributing
to a loss should ultimately be required to bear it.250
In giving meaning to gross negligence and willful misconduct in
the OPA, the courts are called upon to make moral judgments for
which precise criteria cannot be given. Because Congress has used
these two terms, their interpretation must turn on the two elements
that clearly arise from the "cluster of ideas" that surround their
common usage in statutes and case law in the United States. One is
that the conduct in question must reflect a departure or deviation
from ordinary care of prudent persons in like circumstances (an
objective element). The second is that there must be present in the
actions under question a state of mind, an awareness that one is
acting in a manner that threatens injury to others (a subjective
element).2 5 1 It is this latter element that transforms negligence into
gross negligence and renders it indistinguishable from willful
misconduct under most circumstances.
250. Perry, supranote 57, at 465.
251. Professor Schoenbaum appears to have come to the same reading of
"gross negligence" under the OPA, for he has commented on certain cases in
relation to section 2704 as follows:
Guidance to the standard for breaking the limitations under OPA may be
gained from prior case law under the FWPCA. [Compare Tug Ocean
Prince, Inc. v. United States, 584 F.2d 1151 (2d Cir. 1978), with Steuart
Transp. Co. v. Allied Towing Corp., 596 F.2d 609 (4th Cir. 1979).]
These cases show that the standard of willful misconduct or gross
negligence requires more than mere negligence but reckless disregard for
the probable consequences of a voluntary act or omission.
SCHOENBAUM, supra note 194, § 18-2 n.19.